Felder

This is a second appeal of the case at bar. The facts are stated in our former opinion, 34 F. (2d) 744. The judgment was reversed because the counterclaim, which was based upon the election to recover on an implied contract resulting from the conversion of certain hydraulic mining-machinery, did not allege the value of the property converted. Upon remanding the case to the trial court, it was suggested that this error be remedied by an amendment of the counterclaim to allege such value. Instead, the counterclaim was amended by withdrawing the allegations wherein the defendant elected to sue in contract and not in tort, and by claiming damages for the tort.

As pointed out on the former appeal, the Code of Alaska permits the filing of a counterclaim in contract “in an action arising on contract.” Comp.Laws Alaska 1913, § 896. It also permits a counterclaim based upon “a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim.” Id., § 896, subd. 1. The amended counterclaim was formulated with the evident purpose of bringing the case within the first subdivision of section 896, supra, by claiming that credit was…