care in the carriage of passengers and goods intrusted to him, and his failure to do so is not only a tort, but also a breach of his contract, and for such breach he may be sued at the election of the injured party, either in tort or on the contract. An attorney who undertakes to perform services for a client in the conduct of litigation impliedly contracts to exercise due care, skill, and knowledge of the law in the conduct of his client's business, and his negligence in that regard is a breach of his contract, and a proper subject for counterclaim in any action he may bring to recover for his professional services.

Judgment affirmed.

(d) Parties to Counterclaims.

WEEKS v. O'BRIEN

Appellate Division of the Supreme Court of New York.

1898.

25 New York Appellate Division, 206.

BARRETT, J.: The action is brought against the defendant, in his representative capacity as executor of Ellen O'Brien, deceased, to recover damages for breach of a building contract by his testatrix. The answer sets up a number of counterclaims founded upon judgments recovered by third parties against the plaintiff, which it is alleged were, before the commencement of this action, assigned to the defendant, as executor of Ellen O'Brien, deceased. These counterclaims were demurred to upon several grounds, one being that they do not state facts sufficient to constitute a cause of action.

We think this demurrer was well taken. A demurrer to a complaint or counterclaim upon the ground that the facts stated are not sufficient to constitute a cause of action is well taken, when such facts do not disclose an enforceable claim against the party demurring, in favor of the plaintiff or counterclaiming defendant. Here the counterclaims, as

alleged, show no enforceable claim against the plaintiff in favor of the estate of Ellen O'Brien, deceased.

The rule is well settled that, where an executor takes a chose in action as a new security for a debt or obligation due to his testator, he takes it in his representative capacity. Before the code the executor could sue upon such chose in action, either in his individual or representative name. Now, however, under sections 449 and 1814 of the Code of Civil Procedure, the action must be brought in his representative character. This is expressly required by section 1814, and section 449 provides that an action must be brought in the name of the real party in interest. As the chose in action, under such circumstances, belongs to the estate, the executor, as such, is the real party in interest This is well settled. Thompson v. Whitmarsh, 100 N. Y. 35. The converse is equally well settled. Thus, where the chose in action does not come to the executor through his representation of the deceased,-where, in fact, such chose in action is acquired by him under a contract which never existed in favor of the decedent, he takes it individually, and not as executor. This was held in the case above cited, where the rule was extended even to a debt received by the executor upon the sale of property of the estate. FINCH, J., there said: "Where an executor or administrator sells on credit the property of the estate, and sues to recover the debt, he, as an individual, is the real party in interest; for the contract is made with him, and the promise to pay runs to him.”

See, also, Dudley v. Griswold, 2 Bradf. (Sur.) 24, and McClenahan v. Cotten, 83 N. C. 332. It follows that an individual claim of the defendant is here attempted to be counterclaimed against a cause of action against his estate. This may not be done. Code, § 505. The defendant, in his representative capacity, has absolutely no interest in the counterclaims alleged. In such capacity, he is as much a stranger to them as though they had been held by some third party. As executor, he has no cause of action thereon. It may be that this point might have been raised by a demurrer upon the ground that the counterclaims were not of the character specified in section 501 of the code, the particular nature of the variance being set forth. We think, however, that the method adopted was also a proper

one.

The judgment overruling the demurrer should be reversed, and the demurrer sustained, with costs of the appeal and in the court below, and leave to the defendant to amend upon payment of such costs.

VAN BRUNT, P. J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred.

POPE MANUFACTURING COMPANY v. CHARLESTON CYCLE COMPANY.

Supreme Court of South Carolina. 1899.

55 South Carolina, 528.

July 18, 1899. The opinion of the court was delivered by Mr. Chief Justice McIVER: The plaintiff brings this action, as a corporation, against the defendants, as co-partners in trade under the name and style of the Charleston Cycle Company, to recover the amount due on three accounts for goods sold and delivered and for work and labor done at the request of defendants, each of which accounts is set out in the complaint as a separate cause of action. The defendants, in their joint answer, set up as their defense a general denial of all the allegations in the complaint. The defendant E. B. Welch also filed a separate answer, in which he alleges that he alone was at the times mentioned, and still is, doing business under the name and style of the Charleston Cycle Company, and sets up two counterclaims against the plaintiff, upon which he demands judgment against the plaintiff. To the separate answer of the said E. B. Welch the plaintiff replied, admitting the allegation that the plaintiff was at the time mentioned, and still is, a corporation duly created under the laws of the state of Maine, and denying all the other allegations contained in said answer. Upon this state of the pleadings the plaintiff gave notice of a motion to strike out the counterclaims, upon the ground that they do not state facts sufficient to constitute either a counterclaim or a defense to this action, inasmuch as the same is brought by the plaintiff against the defendants, as co-partners, on claims alleged to be due by said

co-partnership, while the said counterclaims are interposed by the defendant E. B. Welch alone, on claims alleged to be due by the plaintiff to him individually. This motion was heard by his honor, Judge BENET, who, after hearing argument of counsel, granted the motion upon the ground that the action being against a partnership, upon an alleged partnership debt, one of the defendant partners cannot set up as a counterclaim a debt alleged to be due him individually by the plaintiff. From this order the defendants appeal, upon the several grounds set out in the record, which need not be stated specifically here, as the substantial and real question presented by the appeal is whether, to an action of law brought against defendants as co-partners, upon a demand alleged to be due by the partnership, one of the defendants can set up as a counterclaim a debt alleged to be due him individually by the plaintiff.

Under the common-law system of pleading which prevailed in the state prior to the adoption of the code of civil procedure, we do not see how there could be a doubt that the question presented by this appeal would have to be answered in the negative.

It only remains, therefore, to inquire whether this rule has been abrogated or modified by the code.

It seems to us, that there is nothing in any of the provisions of the code which effects any change in the nature of a partnership contract, whereby it is converted from a joint contract into a joint and several contract, and that no change has been effected in the mode of proceeding for the enforcement of a partnership contract except in the particulars above stated, none of which are found in the present case. Hence it follows, according to the previously well-settled rule, that, in an action against a partnership on a partnership contract, no one of the persons composing such partnership can set up, by way of counterclaim or set-off, a demand due to him individually. This doctrine is fully recognized and affirmed in Pomeroy's Remedies (1st Ed.), in section 751, on pages 771, 772 and also in section 761, on page 782, where that distinguished author (whose work to which we have referred is regarded as standard authority upon questions arising under the code), after reviewing the decisions, says that certain spe

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cific rules are clearly established, the first of which he states in the following language: "When the defendants in an action are joint contractors, and are served as such, no counterclaim can be made available which consists of a demand in favor of one or some of them."

The judgment of this court is that the judgment or order of the Circuit Court be affirmed.1

1 Bringing in New Parties. No cause of action is a proper subject of counter-claim which requires new parties to be brought in. McConihe v. Hollister (1865), 19 Wis. 269; Taylor v. Matteson (1893), 86 Wis. 113; Lowndes v. City National Bank (1907), 79 Conn. 693. But statutes sometimes expressly authorize the bringing in of new parties.

(e) Jurisdictional Amount.

GENERAL ELECTRIC COMPANY v. WILLIAMS.

Supreme Court of North Carolina. 1898.

123 North Carolina, 51.

DOUGLAS, J.: This case is before us on demurrer to a counter-claim. The action was originally brought before a justice of the peace, and subsequently heard on appeal in the Superior Court. The plaintiff sued for the sum of $171.85, for goods sold and delivered. The defendant denied all the allegations of the complaint, and set up as "a further defense and counterclaim" that he had paid $33 of the account, and had shipped to the plaintiff, to be repaired and returned, two arc lamps and one transformer, worth the sum of $165.16, which the plaintiff had never returned. Of these two sums, amounting to $198.16, the defendant remitted all in excess of the plaintiff's claim, and pleaded the remainder, $171.85, as a set-off. From this it would appear that the defendant, in denying the allegations in the complaint, intended simply to deny the indebtedness, as he does not seek to recover this amount. He does, however, go on further, and set up as a second counterclaim that he had shipped to the plaintiff four additional transformers, worth $180, which had never been returned, and that the damages caused by their detention amounted to