C. S., 521 (now G. S., 1-137), reads: “The counterclaim mentioned in this article must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action 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. 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.”
There is no controversy as to the counterclaim alleged existing in favor of the defendant and against the plaintiff between whom several judgments might be had in the action. In view of our opinion, it is unnecessary to decide whether the counterclaim alleged constitutes a cause of action arising out of the contract or transaction set forth in the com*75plaint as tbe foundation of the plaintiff’s claim, or-is connected with the subject of the action.
The action alleged in the complaint is for a breach by the defendant of a contract to make patterns for and cut certain goods for the plaintiff, out of which to make ladies’ suits and slacks, and this alleged action is ex contractu, notwithstanding the breach may have been caused by the neglect or failure of the defendant to perform his obligations thereunder. Such being the case, under subsection 2 of the statute (G. S., 1-137), “any other cause of action arising also on contract, and existing at the commencement of the action” may be set forth as “new matter constituting a defense or counterclaim.” G. S., 1-135.
The counterclaim set forth in the answer sounds in contract. It is to enforce, or to collect, a penalty and such actions have been universally held by us to be ex contractu. “An action for a penalty given by a statute to any person injured, is an action on contract. This has been the settled law. 3 Blackstone’s Com., 158, 160, 161.” Doughty v. R. R., 78 N. C., 22; Katzenstein v. R. R. Co., 84 N. C., 688; Edenton v. Wool, 65 N. C., 379; Wilmington v. Davis, 63 N. C., 582.
The cause of action originally alleged- by the plaintiff being upon contract, the cause of action set forth by the defendant, arising also upon •contract, could, under subsection 2 of G. S., 1-137, be properly pleaded as a counterclaim, and for that reason the demurrer to the counterclaim was properly overruled.
The judgment of the Superior Court is
Affirmed.