Lummus Cotton Gin Co. v. Wise

Pee CueiaM. On tbe admissions in tbe answer, but for the counterclaim alleged therein, tbe plaintiff was entitled to judgment on tbe pleadings. Tbe burden of proof was therefore on tbe defendant, as tbe trial judge correctly ruled. A counterclaim is a cross-action by tbe defendant against tbe plaintiff. Tbe burden of proof is always on tbe defendant, who admits tbe cause of action alleged in tbe complaint, and relies upon a counterclaim alleged in bis answer, which is denied' in tbe reply. In tbe absence of evidence tending to support tbe counterclaim, tbe defendant should be nonsuited. McQueen v. Bank, 111 N. C., 509, 16 S. E., 207. In tbe instant case there was evidence in support of tbe allegations in tbe answer, constituting a counterclaim. There was, therefore, no error in tbe refusal of plaintiff’s motion at tbe close of all tbe evidence tbat defendant’s counterclaim or cross-action be dismissed. Upon consideration of tbe other assignments of error by plaintiff on tbis appeal, we are of tbe opinion tbat they cannot be sustained. Defendant can neither read nor write. Tbe warranty contained in tbe written contract was not read or explained to him by tbe salesman who solicited bis order for tbe cotton gin. Under tbe circumstances as shown by all tbe evidence, and as found by tbe jury, tbe conditions precedent to a claim by tbe defendant for damages resulting from a breach of tbe warranty cannot and ought not to be enforced in tbe instant case. Tbe judgment is affirmed. We find No error.