
    SHELL and SOUTHERLAND v. J. H. AIKEN et al.
    (Filed 11 May, 1911.)
    1. Partnership — Contracts — Counterclaim — Breach of Covenant— Credit on Note.
    Defendant partnership, consisting of man and wife, were sued on a note given for the purchase of a livery business, the subject of the partnership. The husband claimed damages for breach of warranty in the purchase of a surrey'plaintiff subsequently sold him for the partnership, as a counterclaim. Selcl, the note being joint and several, the damages allowed on the breach of warranty to the husband in the judgment was a proper credit on the note.
    2. Damages — Contract—Breach of Warranty — Tort—Waiver.
    A counterclaim for damages for a breach of warranty arises out of contract and can properly be set up in an action thereon, and the defendant may waive the tort and sue in contract.
    Appeal by plaintiff from Long, J., at tbe February Term, 1910, of Catawba.
    
      A. A. Whitener for plaintiff.
    
    
      W. A. Self and O. L. Whitener for defendant.
    
   Clark, O. J.

Tbe plaintiffs, Shell & Southerland, a partnership, sold their livery business to the defendants, who were husband and wife, taking a note, signed by them both, in the sum of $600, upon which this action is brought. The husband pleaded as a counterclaim that subsequently to the above sale the plaintiffs sold him a surrey for $142 and warranted the same; that the surrey proved to be worthless, and he sets up damages for the breach of warranty as a counterclaim. The jury assessed the counterclaim at $100, which was deducted from the amount which was admitted to be due upon the note.

The plaintiffs present several exceptions, but in their brief they are practically reduced to two propositions. They contend that the counterclaim wás due to the husband only, and therefore judgment should have been rendered against the wife for the full amount of the note. But, as the note was joint and several, any credit allowed thereon in the judgment rendered against one of tbe obligors will, of course, be a payment as to tbe other. Tbe note sued on was due to tbe partnership, and tbe counterclaim was owing by tbe partnership, and was therefore properly allowed as a counterclaim.

Tbe second contention of tbe plaintiffs is that tbe counterclaim was for a tort, and inasmuch as it did not arise out of tbe same transaction it could not be set up as a counterclaim. Eevisal, 481. Tbe answer to this is that tbe damages for breach of warranty arise out of contract, and are therefore a proper counterclaim. Even if tbe counterclaim bad been for fraud and deceit, and therefore an action ex delicto under tbe old procedure, tbe defendant could waive the tort and sue in contract. Bullinger v. Marshall, 70 N. C., 526.

No Error.  