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is to be drawn, however, between counterclaims arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, and those arising upon contract in which distinct contracts are the subject of the counterclaim; it is in the latter class of cases that this rule with reference to jurisdictional amount is to be applied. The amount of cross-demand under the first subdivision of the statute is of no moment for jurisdictional purposes; the rule is to be limited to the unconnected causes of action mentioned in the second subdivision. If a set-off less than three hundred dollars in amount, exclusive of interest, held by a defendant is pleaded by him as purely defensive matter in the reduction or extinguishment of the claim of the plaintiff in an action triable by the superior court, the court can properly entertain it.123 Where, however, a defendant shows by his pleading that the plaintiff's action arising on contract is wholly unfounded, it is clear that he cannot also set up a cause of action on a different contract, as the foundation for an affirmative judgment against the plaintiff, unless his demand is within the jurisdiction of the court.124

§ 640. Necessity to plead. In the preceding sections we discussed the right to assert demands by way of counterclaim. The mode of pleading the demand is of no less importance than the right to plead it. In order to thus avail himself of a crossdemand, the defendant must plead it. Evidence to support the demand is not admissible under the general issue or under an answer containing merely a denial of the plaintiff's cause of action.125 Such matter should be specially pleaded.126 It is not enough to allege in general terms that the demand is a counterclaim; it must be stated specifically,127 and, if the complaint is7 based on a written contract by the terms of which the plaintiff is to do certain things, and the complaint avers a faithful per

123 Freeman V. Seitz, 126 Cal. 293, 58 Pac. 690; Hart v. Cooper, 47 Cal. 77.

124 Griswold v. Pieratt, 110 Cal. 266, 42 Pac. 820.

125 Hicks v. Green, 9 Cal. 74; Stoddard v. Treadwell, 26 Cal. 294; Cleary v. Folger, 84 Cal. 316, 18 Am. St. Rep. 187, 24 Pac. 280. Matter of Couts, 100 Cal. 400, 34 Pac. 865;

Babcock v. Maxwell, 21 Mont. 507, 54
Pac. 943; Union Mercantile Co. v.
Jacobs, 20 Mont. 554, 52 Pac. 357;
Parker v. Cochrane, 11 Colo. 363, 18
Pac. 209.

126 Hicks v. Green, 9 Cal. 75; Quinn v. Smith, 49 Cal. 165; Reese v. Gordon, 19 Cal. 150.

127 Van Valen v. Lapham, 5 Duer, 689.

128

formance on his part, and the answer denies the performance, the defendant cannot under this allegation and denial introduce evidence of a counterclaim.12 To entitle a defendant to set off a claim against a demand of the plaintiff, he must set forth in his answer the nature of the claim which he intends to set off, and when this is not done the court may properly reject evidence of the claim proposed to be set off.129

It is enough if the answer states a cause of action against the plaintiff 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.180 But the pleading must show the existence of the right of counterclaim at the commencement of the action; if it does not, it is demurrable.181 Thus a counterclaim which fails to allege that the debt existed at the commencement of the action, but alleges that it is now due, is bad, and a demurrer thereto is properly sustained.132 It is error for the court to permit the defendant by amendment to plead a counterclaim maturing after the cause of action.133

If the defendant omit to set up a counterclaim in the cases mentioned in the first subdivision of the California statute,-i. e. in a cause of action arising out of the transaction set forth in the plaintiff's complaint or connected with the subject of the action, neither he nor his assignee can afterward maintain an action against plaintiff therefor.134

§ 641. Form of pleading.-The general rules of pleading are applicable to counterclaims. Facts must be stated which constitute a cause of action against the plaintiff, and the sufficiency of the counterclaim must be governed by the same rules as if the defendant had brought suit against the plaintiff ;135 and where the defendant sets up facts which would make his pleading good as a complaint, no more is necessary.136 Under the general rules

128 Stoddard v. Treadwell, 26 Cal. 294.

129 Bernard v. Mullot, 1 Cal. 368. 130 Allen v. Haskins, 5 Duer, 332. 131 Gannon v. Dougherty, 41 Cal. 661; Wood v. Brush, 72 Cal. 224, 13 Pac. 627.

132 McGuire v. Lamb, 2 Idaho, 378, 17 Pac. 749; Swanholme v. Reeser, 3 Idaho, 476, 31 Pac. 804.

133 McGuire v. Edsall, 14 Mont. 359, 36 Pac. 453.

134 Cal. Code Civ. Proc., § 439. 135 Quinn v. Smith, 49 Cal. 163; Clay v. Caroll, 67 Cal. 21, 6 Pac. 874; Daggs v. Phoenix Nat. Bank, 5 Ariz. 409, 53 Pac. 201; McKinney v. Sundback, 3 S. Dak. 106, 52 N. W. 322; Staab v. Garcia, 3 N. Mex. 53, 1 Pac. 857.

136 Clay v. Caroll, 67 Cal. 19, 6 Pac. 874; Meagher v. Morgan, 3 Kan. 372, 87 Am. Dec. 476; Staab v. Garcia, 3 N. Mex. 53, 1 Pac. 857.

of pleading, the defendant must allege the facts constituting his right of counterclaim in such a manner that the court can determine from the facts averred whether or not his claim is allowable, in other words, the defendant shall state, and his pleading shall consist of, a plain statement of the facts constituting his cause of counterclaim.137 The defendant, however, is not required to use any greater definiteness and certainty than is a plaintiff in stating his cause of action in a complaint; and though certain defenses by way of counterclaim are pleaded in the answer in a very informal and inartificial manner, still, if the facts showing that they constitute valid claims against the plaintiff are sufficiently stated, the counterclaim will be upheld, if good in substance.138 The defendant must allege sufficient facts to show that he is entitled to a counterclaim, and to show the origin and character of his demand;139 and the facts showing how the claim arose out of the transaction set out in the plaintiff's complaint must be stated in the answer.140

141

It is not sufficient to allege facts merely setting forth a defense to the plaintiff's action; the defendant must allege facts showing a liability on the part of the plaintiff and disclosing a right of action in the defendant against the plaintiff. And where the right is wholly statutory, facts must be alleged to bring the defendant's claim within the statute.142 "The criterion for determining whether the defense set up can be maintained as a counterclaim is whether the answer sets up a cause of action upon which the defendant might have sustained a suit against the plaintiff; and if it does, then such cause of action is a counterclaim; and it must disclose such a state of facts as would entitle the defendant to his action if he were plaintiff in the prosecution of his suit; it should contain the substance of a complaint, and, like it, contain a plain and concise statement of the facts constituting a cause of action." 143

137 Roldan v. Power, 14 Misc. 480, 35 N. Y. Supp. 697.

138 Wallace v. Bear River Water, etc. Co., 18 Cal. 461.

139 Braithwaite v. Akin, 3 N. Dak. 365, 56 N. W. 133; Decorah First Nat. Bank v. Laughlin, 4 N. Dak. 391, 61 N. W. 473.

140 Brown v. Buckingham, 11 Abb. Pr. 387.

141 Quinn v. Smith, 49 Cal. 163; Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943; Wehn v. Fall, 55 Neb. 547, 70 Am. St. Rep. 397, 76 N. W. 13.

142 Haupt v. Ames, 26 App. Div. 550, 50 N. Y. Supp. 495; Clark v. Sullivan, 2 N. Dak. 103, 49 N. W. 416, 13 L. R A. 233; Burge v. Gandy, 41 Neb. 149, 59 N. W. 359.

143 Garrett v. Love, 89 N. C. 205.

§ 642. Designation of pleading.-As a general rule, a counterclaim must be designated as such, and contain a prayer for affirmative relief, in order to be effective.144 The reason for this rule under the New York statute has been well stated by Van Wyck, J., in Wood v. Gordon:145 It seems safe to say that a rule has been established which requires that when the new matter set forth in an answer approaches too closely the line-by no means distinctly visible at all times-called the 'boundary line' between new matter constituting an affirmative defense and new matter setting forth a counterclaim, the pleader must label his plea if he desires or expects a reply without an order from the court; and so too it is held that the defendant's prayer for affirmative, equitable relief, will not alone be sufficiently explicit to force a reply as a counterclaim, but that he must characterize his plea as a counterclaim before he can successfully complain of the plaintiff's failure to demur or reply. This rule, which is enforced against the defendant to prevent his technical effort for judgment without trial, will be turned to his aid when he is met at trial by the plaintiff's objection to his giving proofs of his allegations in order to secure his affirmative, equitable relief; for he will then be allowed to make such proof and obtain such relief, notwithstanding he has not labeled his plea as a counterclaim." It has also been held that the defendant is bound by the designation he gives his answer, and he cannot treat as a defense what he has denominated a counterclaim, or vice versa.' 146 And where, as is the rule in California,147 the statement of any new matter in the answer in avoidance, or constituting a defense or counterclaim, is deemed controverted by the opposite party, the defendant cannot, after omitting to designate his pleading, insist that it was a cross-complaint, so as to entitle him to a judgment on the pleadings, when, in fact, it was a counterclaim.148

§ 643. Answer or demurrer. The statement of any new matter in the answer in avoidance, or constituting a defense or

144 Carpenter v. Hewel, 67 Cal. 589, 8 Pac. 314; Brannan v. Paty, 58 Cal. 330; Babcock v. Maxwell, 21 Mont. 515, 54 Pac. 943; Equitable Life Assur. Soc. v. Cuyler, 75 N. Y. 511; Rood v. Taft, 94 Wis. 380, 69 N. W. 183; Stowell v. Eldred, 39 Wis. 614.

145 13 N. Y. Supp. 595.

146 Equitable Life Assur. Soc. v. Cuyler, 75 N. Y. 511; Wright v. Delafield, 25 N. Y. 266; Resch v. Senn, 31 Wis. 138.

147 Cal. Code Civ. Proc., § 462.

148 Cohn v. Kelly, 132 Cal. 468, 64 Pac. 709.

counterclaim, must on the trial be deemed controverted by the opposite party.149 A counterclaim, however, is always subject. to demurrer or answer.150 Thus a demurrer will lie where it appears on the face of the counterclaim that it does not state facts proper to be alleged as counterclaim,151 or that the court. has not jurisdiction,152 or (in Washington) that there is another action pending between the same parties for the same cause; 15 and if the objection that there is another action pending does not appear on the face of the counterclaim, the objection may be taken by answer. 154 In California, where a counterclaim based upon a money demand is barred by the statute of limitations, the plaintiff is deemed to have pleaded the statute.155

The plaintiff in his reply to the counterclaim may set up new matter not inconsistent with his complaint, constituting a defense to the counterclaim.156

FORMS OF COUNTERCLAIMS.

§ 644. Counterclaim against carrier for negligence. Form No. 197.

The defendant, further answering and by way of counterclaim. herein, alleges: that the transportation of the goods mentioned in the complaint was conducted so badly and negligently, and with so little care, that by the mere carelessness, negligence, and improper conduct of the said plaintiff and his servants in that behalf, a part of the said goods, of the value of at least . . . dollars, were wholly lost to the defendant; and a part thereof, of the value of . . . dollars, were damaged in the sum of . . . dollars; which said loss and damages, amounting to the sum of ... dollars, the defendant claims the right to counterclaim and

149 Cal. Code Civ. Proc., § 462. 150 Brugman v. Burr, 30 Neb. 406, 46 N. W. 644; Leyser v. Rindskopf, 3 N. Mex. 233, 5 Pac. 540; First Nat. Bank v. Laughlin, 4 N. Dak. 391, 61 Pac. 473; Sears v. Martin, 22 Or. 311, 29 Pac. 890; Wait v. Wheeler etc. Mfg. Co. 23 Or. 297, 31 Pac. 661; Phillips V. Port Townsend Lodge, 8 Wash. 529, 36 Pac. 476.

151 First Nat. Bank v. Laughlin, 4 N. Dak. 391, 61 Pac. 473; Phillips

v. Port Townsend Lodge, 8 Wash. 529, 36 Pac. 476.

152 Cragin v. Lovell, 88 N. Y. 258. 153 Caine v. Seattle etc. R. R. Co., 12 Wash. 596, 41 Pac. 904.

154 Id.

155 Curtiss v. Sprague, 49 Cal. 301.

156 Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943; Van Biber v. Fields, 25 Or. 527, 36 Pac. 526; Glecker v. Slavens, 5 S. Dak. 364, 59 N. W. 323.

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