Weiner v. Equel's Style Shop, Inc.

Clarkson, J. N. C. Code, 1935 (Michie), sec. 521, is as follows: “The counterclaim mentioned in this article must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: (1) A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action. (2) In an action on contract, any other cause of action arising also on contract, and existing at the commencement of the action.” The plaintiffs sued defendant to recover the price for goods, wares, and merchandise sold and delivered to it. The debt is not denied, but defendant sets up a counterclaim — a tort action for slander occurring some time after the sale. We do not think the above section, construed liberally, is elastic enough'to permit a counterclaim for slander' — a tort action — under the facts and circumstances of this case. In fact, we think the case of Milling Co. v. Finlay, 110 N. C., 411, decisive of the question. At p. 412, speaking to the subject, it is said: “The plaintiff complains that the defendants being indebted to it, accepted a draft drawn on them by the plaintiff, and have failed to pay it. The defendants allege that the plaintiff slandered them as to their pecuniary standing, and injured their credit and business, and seek damages therefor by way *708 of counterclaim. This did not arise out of contract, and therefore could not be pleaded under subsection 2 of section 244 of The Code (N. C. Code [Michie], section 521, supra,) ; nor could it be pleaded under the first subsection thereof, because it did not 'arise out of the contract or transaction which was the ground of the plaintiff’s claim,’ nor was it 'connected with the subject of the action’- — -the contract made by the acceptance of plaintiff’s draft. Byerly v. Humphrey, 95 N. C., 151.” Thompson v. Buchanan, 195 N. C., 155 (158). In the case of Price v. Kobacker Furniture Co., 152 N. E., 301, 20 Ohio App., 464, plaintiff brought action against defendant on account of goods sold and delivered, and defendant filed a counterclaim setting forth a cause of action for injuries which he claimed to have sustained through being blacklisted as to his credit by reason of adverse information having-been given by his creditor to a credit association. In its opinion the Court said: “Assuming that the counterclaim states facts sufficient to constitute a cause of action, let us inquire whether or not the facts pleaded are -such as to be the basis of a counterclaim under the provisions of section 11317 above quoted. There are two classes of counterclaim provided for in that section, first, those arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, and, second, those connected with the subject of the action. The contract or transaction set forth in the petition was that involved in the selling to defendant of certain goods on account. It could hardly be said by any stretch of the imagination that the blacklisting arose out of the sale of the goods or the contract on which such sale was based. We may, therefore, dismiss that part of the statute from further consideration. Whether or not the blacklisting was connected with the subject of the action is a question presenting, at first blush, more difficulty. We are of the opinion that the principle enunciated in the case of Williams v. Ederer, 18 Ohio Cir. Ct. R. (N. S.), 515, is applicable. In that case Ederer sued Williams on an account for goods sold and delivered. Williams counterclaimed, setting up a tort growing out of the sending of a letter by Ederer’s attorney, who had the claim for collection, to Williams’ employer, by reason of which Williams lost his job. It was held that such a tort was not the proper subject of the counterclaim, and that a cause of action based thereon was insufficient in law. If the debtor refuses to pay the amount which his creditor claims is due him, the latter may become aggravated and blacklist the defendant, commit an assault and battery upon him, wrongfully write a letter to his employer bringing about his discharge, or commit some other similar tort. If that result follows, can it be said that such tort is connected with the subject of the action? We think it is not even remotely so connected. The failure to pay the account is, in such cases, merely the motive for *709 the commission of the tort.” Columbia Nat. Bank v. Rizer, 150 S. E., 316 (S. C.); Watts v. Gantt, 61 N. W., 104, 107 (Neb.); Bank of Charleston v. Bank of Neeses, 119 S. E., 841 (S. C.); Hendrickson v. Smith, 189 P.. 550 (Wash.); Lyric Piano Co. v. Purvis, 241 S. W., 69 (Ky.). The defendant contends that the demurrer admits the allegation in the complaint, viz.: “That the libelous publication made by the plaintiffs grew out of the same transaction sued upon by the plaintiffs, and was connected with the subject of the action.” It is well settled in this jurisdiction that a demurrer filed admits the relevant facts set out and such relevant inferences of fact as may be deducible therefrom, but does not admit conclusions or inferences of law. Andrews v. R. R., 200 N. C., 483 (484). We think the allegation relied on a conclusion of the pleader. Baker v. R. R., 205 N. C., 329 (333). For the reasons given, the judgment of the court below is Affirmed.