Scheunert v. Kaehler

DixoN, C. J. The question in this case arises upon that provision of the statute which authorizes the defendant to plead as a counter-claim “ 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.” R. S. ch. 125, § 11, súbd. 1. The complaint is in tort for the conversion of money, the proceeds of goods sold by the defendant for the plaintiff on commission; and the third separate defense, to which the demurrer is interposed, sets up, by way of counter-claim, a breach of the contract under which it is alleged the goods were delivered to be sold on commission, and claims damages on account of such breach. The alleged breach consists in a violation of the contract, not in respect to the goods sold, the proceeds of which the plaintiff seeks to recover in this form of action, but in relation to other and quite different' subjects, namely, the failure of the plaintiff to furnish employment for certain teams of the defendant, and to deliver to the defendant other goods to be sold on commission, as it is averred he had agreed to do. Assuming that a counter-claim may be pleaded to an action of tort, a question not necessary to be decided, and assuming also that no objection exists because the contract for the breach of which the defendant claims damages, is not set forth in the complaint, but that it would be admissible, if at all, under the last clause of the subdivision,' as connected with the subject of the action, the question resolves itself into [527] an inquiry as to the origin of the cause of the action stated in the complaint — whether it arises upon the contract set forth in the answer, or originates in facts outside of and disconnected with that contract. If the former, then the counterclaim would seem to be clearly within the statute, and must be allowed; but if the latter, then it is not a cause of action arising out of the contract or transaction set forth as the foundation of the plaintiff’s claim, nor connected with the subject of the action, and must be disallowed.- The action is one of that large class with which we are all familiar, where the plaintiff has a choice of remedies, to sue upon a contract as for an express or implied violation of it, or to maintain an action of tort for the wrong which has been done him; and the question presented is in substance the same as that involved in the cases In Mowry, 12 Wis. 52, and Cotton v. Sharpstein 14 id. 226, as to the liability of parties to arrest under the clause of the constitution prohibiting imprisonment for debt arising out of or founded on a contract, expressed or implied. As was held in those cases, the subject of the action is the tort or wrong which was committed in the conversion of the money. That is the foundation, and the sole foundation, of the plaintiff’s claim in this form of action; for unless the money was unlawfully converted, the action cannot be maintained. The cause of action then originates in the conversion; and, for the purpose of testing the admissibility of the counterclaim, the conversion alone must be looked to, and it can make no difference that there was a contract upon which the plaintiff had a concurrent right of action in case he had seen fit to bring a suit of that kind. The contract is entirely out of this case, and no more to be regarded than if it did not exist. Eor these reasons, therefore, we are of opinion that the counter-claim in question is inadmissible, and that the order of the court below overruling the demurrer of the plaintiff [528] must be reversed and the cause remanded for further proceedings according to law. By the Oowrt. — Ordered accordingly.