English Drug Co. v. Helms

CoNNOR, J. Under the provision in the lease, on which the cause of action alleged in the complaint is founded, as correctly construed in the court below, the defendants are liable to plaintiff for the amount expended for the installation of the steam heating plant in defendant’s *757 building. This liability is not dependent upon the submission by the plaintiff to the defendants at the time the plant was installed, of the exact amount of its cost, nor upon an agreement in writing between the parties, prior to the commencement of the action, as to said amount. Neither such submission, nor such agreement is a condition precedent to the right of plaintiff to recover in this action. The principle stated in Wade v. Lutterloh, 196 N. C., 116, 144 S. E., 694, and eases cited therein, and relied on by defendants, although well settled, has no application in the instant ease. The defendants agreed and bound themselves to pay to plaintiff, when plaintiff surrendered possession of their building, including the steam heating plant installed therein by plaintiff, at its own expense, the exact amount of the cost of said plant. All the evidence showed a substantial compliance by the plaintiff with the provision that it should submit to defendants the exact amount expended by it for the plant. It is manifest that plaintiff could not agree in writing as to such amount without the concurrence of defendants. It is apparent that there is no controversy between the parties to this action as to the amount actually expended by plaintiff for the steam heating plant. Defendants’ assignments of error based on their contention that plaintiff is not entitled to recover in this action cannot be sustained. There was no error in the judgment sustaining plaintiff’s demurrer ore terms to the counterclaim of defendants. This counterclaim is founded on a tort, while the cause of action alleged in the complaint is founded on a contract. The tort alleged does not arise out of and has no relation to the contract or transaction alleged in the complaint. C. S., 521. See Thompson v. Buchanan, 195 N. C., 155, 141 S. E., 580; R. R. v. Nichols, 187 N. C., 153, 120 S. E., 819. ~We find no error on this appeal. The judgment is af&rmed. No error.