Ætna Life Insurance v. Griffin

ClabKson, J. The questions involved: (1) Did the trial court err in overruling the plaintiff’s demurrer to section 18 of defendants’ amended answer? (2) Did the trial court err in refusing to permit plaintiff to take a voluntary nonsuit? We think not. This brings us to consider what is a counterclaim. C. S., 521: “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: (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 arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.” Subject to the limitations expressed in the above section, a counterclaim includes practically every kind of cross-demand existing in favor of defendant against the plaintiff in the same right, whether said demand be of a legal or an equitable nature. It is said to be broader in meaning than setoff, recoupment, or cross-action, and includes them all, and secures to defendant the full relief which a separate action at law, or a bill in chancery, or a cross-bill would have secured on the same state of facts. Smith v. French, 141 N. C., at p. 7. In Roper Lumber Co. v. Wallace, 93 N. C., at p. 28, speaking to the subject: “The defendants’ answer is informal, but it in substance and effect denies, first, that the plaintiffs are the owners of the land, and that they trespassed upon the same as alleged in the complaint, and *254 they also deny most of the other material allegations. They thus put the plaintiffs to prove their title and establish their cause of action. With this they might have stopped. But they did not simply make defense, and thus put in issue the plaintiffs’ alleged rights — they alleged that, they were the owners of the land — that the plaintiffs were trespassers in possession of it, cutting and removing the timber from it, for which it was mainly valuable, and were continuing to cut and remove it, etc. The plaintiffs denied that the defendants had title; they denied the alleged trespass, and they put them to prove title, and establish their cause of action. In our judgment, the defendants thus alleged a counterclaim.” In an action for the specific recovery of a horse, the defendant pleaded as a counterclaim, that the plaintiff sold the horse to the defendant, and, at the time of the sale, warranted that it was sound, which warranty was false, and in consequence of which the defendant had been damaged; Held: that the counterclaim arose out of the transaction set out in the complaint and was properly pleaded as a counterclaim. Wilson v. Hughes, 94 N. C., 182. The rule is thus stated by Allen, J., in the case of Yellowday v. Perkinson, 167 N. C., at p. 147: “These authorities establish the proposition that the plaintiff has no right to submit to a judgment of nonsuit without the consent of the defendant, and dismiss the action, if a counterclaim is pleaded, and that when facts are alleged which would entitle the defendant to maintain a separate action against the plaintiff, legal or equitable, they amount to a counterclaim.” ' C. S., 506, in reference to what the complaint must contain, says: “(2) A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation must be distinctly numbered.” In C. S., 535, we find: “In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.” It goes without saying that the counterclaim set up must contain a plain and concise statement of the facts constituting same without unnecessary repetition. In the amended answer is the following: “ J ames Clingman Griffin, refused to accept the amounts tendered and refused to deliver the said policy to the plaintiff for cancellation, because at that time and while the said policy was in full force and effect the said James Clingman Griffin had become totally and permanently disabled, as the plaintiff well knew, whereby the said defendant has become entitled to certain rights and benefits under said policy which the plaintiff is attempting to avoid payment of in this action.” *255 ¥e think that the defense that defendants were “striking at” if sufficiently pleaded would constitute such a counterclaim that plaintiff could not take a voluntary nonsuit. Plaintiff demurs on the ground that the allegations are “insufficient for such purpose.” C. S., 537, is as follows: “If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted. When the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.” “When a good cause of action is set out, but defective in form the court may require the pleadings to be made definite and certain by amendment.” Allen v. R. R., 120 N. C., at p. 550; Bristol v. R. R., 175 N. C., 509; Barbee v. Davis, 187 N. C., at p. 82; Power Co. v. Elizabeth City, 188 N. C., at p. 286; Yonge v. Ins. Co., 199 N. C., at p. 18. We think a counterclaim was pleaded, but indefinite and uncertain. The plaintiff should have made a motion to make the pleadings more definite and certain. A demurrer was not proper. The facts set forth by defendants constitute a counterclaim and the court below was correct in not granting plaintiff’s motion for voluntary nonsuit. Plaintiff will have the right to move in the court below to require defendants to make their amended answer more definite and certain. For the reasons given, the judgment is Affirmed.