The plaintiff brought this action to recover upon a promissory note executed by the defendants, and payable to the plaintiff. The defendants in their answer admit the execution and delivery of the note and nonpayment thereof. By way of defense and counterclaim they aver that the plaintiff has been engaged in business at Jamestown, under the name of Strong Land Company, and that during-July, 1914, the defendants purchased “from said plaintiff, and one B. B. Lowe, and the said Strong Land Company, some land located in the island of Cuba;” that in payment of said land the defendants traded and delivered to the plaintiff and his said company a stock of shoes; that in consideration of said stock of shoes the defendants were to have title and deed to said Cuban land; that plaintiff and his company were
Under our statute a counterclaim “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.” Comp. Laws 1913, § 7449.
The counterclaim sought to be set up by defendants in this case did not arise out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, nor was it connected therewith. It arose out of a wholly independent transaction. The question is therefore whether the answer sets forth a cause of action arising on contract and existing at the commencement of the action. In our opinion it does. It does not state a cause of action for deceit. The only representations set
The answer alleges an agreement between the plaintiff and the defendants, the payment to plaintiff of the full consideration agreed upon, and that the reciprocal consideration moving to the defendants has wholly failed. The relief demanded is that defendants be awarded the value of the goods delivered by them to the plaintiff as the purchase price of land, which they did not receive, and to which plaintiff has no title. The allegations of a pleading must be liberally construed with a view of substantial justice between the parties. Comp. Laws 1913, § 7158. When so construed, the answer in this case is sufficient, and states “a cause of action arising on contract and existing at the commencement of the action.” It was therefore error to sustain the demurrer upon either of the grounds urged by the plaintiff. The judgment appealed from must be reversed. Eeversed and remanded for further proceedings according to law.