Thomssen v. Ertz

BROWN, J. Appeal from an order sustaining plaintiff’s demurrer to the counterclaim set up in defendant’s answer. Defendant is a wholesale commission dealer in fruits, produce, and vegetables in St. Paul, and a member of the association known as the St. Paul Produce Exchange. The rules and regulations of this association required each member to report to the association all delinquent customers and debtors, and it, in turn, published a complete list thereof, distributing and circulating the same among the members of the association. Defendant reported to the association that plaintiff was a delinquent debtor, and his name was published and circulated in accordance with the rules of the association, whereupon plaintiff brought this action for libel for causing his name to be so published. Defendant answered, setting up the fact that he was a member of the association, and, among other things, and as a counterclaim, that on the dates and times therein stated he sold and delivered to plaintiff certain goods and merchandise of the value of $18.55, no part of which had ever been páid; and he demanded judgment against the plaintiff for that amount, with interest. This part of the answer sets out with particularity the formation of the association, the rules and regulations governing and controlling the members, the fact that they are required to report delinquent debtors, and that the association was formed for the mutual protection and benefit of its members. Plaintiff interposed a demurrer to the answer upon the ground that it failed to state facts constituting a counterclaim; in other words, that the indebtedness therein referred to was not a proper subject of counterclaim in this action — one for libel. We are of opinion that the learned trial court correctly sustained the demurrer. The matter pleaded is not a proper subject of counterclaim. Our statutes provide that the counterclaim mentioned therein must be one existing in favor of the defendant and against the plaintiff, by whom a several judgment might be had in the action, and arising either.out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claimy-er--connected....with the'subject of the action. ''The’counterclaim here attempted to be pleaded arises neither oufi’ofN the contract or transaction set forth in the complaint as the foundation of plaintiff’s claim, nor is it, within the meaning of the statute, con [284] nected with the subject of the action. The action is one for libel, and the counterclaim is,for goods sold and delivered to plaintiff — a wholly independent and disconnected subject. The case of King v. Coe Commission Co., supra, page 52, is not in point. In that case the counterclaim objected to was held to arise out of the transaction set forth in the complaint. Order affirmed.