David & Son v. Hurgren & Anderson

This is an action, to recover of the defendants seven hundred and two dollars for the nonfulfillment by them of a contract to deliver to plaintiffs a certain amount of collar leather. The defendants by their answer deny the. averments of the complaint, and set up as a counterclaim that plaintiffs are indebted to them for goods, wares, and merchandise sold, et cetera, in the sum of three hundred dollars. The jury returned a verdict for defendants in the sum of one dollar. Plaintiffs appeal from the judgment, from an order denying their motion for a new trial, and from an order denying their motion to strike out defendants’ cost bill.

1. The counterclaim of the respondents was one proper to he pleaded. The court below seemed to think'that the evidence showed that the counterclaim was one “arising out of the transaction set forth in the complaint,” and therefore belonged to the class of counterclaims mentioned in subdivision 1 of section 438 of the Code of Civil Procedure; the evidence, however, is not before us, and, assuming it to be founded upon an independent contract, yet, as plaintiff’s cause of action was clearly one “arising upon contract,” the counterclaim was valid under…