
    No. 61
    VAUGHN’S SEED STORE v. McMURRAY
    Ohio Appeals, 3rd Dist., Logan Co.
    No. 739.
    Decided Dec. 2, 1926
    211. CAUSES OF ACTION — A cause of action ex delicto cannot be plead as a set-off against plaintiff’s cause of action which has no relation to the set-off.
    Attorneys — Joseph J. Augustus, J. H. Goeke and Dan R. Tripplehorn for Seed Store; Miller & Middleton for McMurray; all of Bellefon-taine.
   HUGHES, J.

The Vaughn Seed Store sued Robert Mc-Murray in the Logan Common Pleas on an account for merchandise sold and delivered. The defendant filed an answer and cross-petition alleging that plaintiff had at one time sold to him, a ton of shredded cow manure and that in delivering same he negligently shipped it in sacks containing soda ash, knowing that the manure was to be used by defendant as fertilizer for his use as a florist.

Objection was made by the plaintiff throughout the progress of the case to introduction of evidence in support of MeMurray’s cross-petition upon the theory that he had no right, by way of cross-petition to file a set-off based entirely on a cause of action ex delicto. Judgment being rendered in favor of McMurray, the Seed Store prosecuted error and the Court of Appeals held:

1. There was no averment in the cross-petition that defendant had, after discovering the breach of the warranty of the manure, given notice within a reasonable time, to plain-tif of such breach.

2. The evidence in support of the cross-petition, including evidence that a notice of the breach in form of a letter, had been given to the plaintiff, was admitted.

3. The suggestion of the defendant that under the Code he may be permitted to amend his pleadings to conform to the proof will not, if permissible, relieve the error hereinafter pointed out.

4. The issue of set-off was submitted to the jury solely on the theory that it was a cause of action ex delicto.

5. A cause of action ex delicto cannot be plead as a set-off by the defendant against plaintiff’s cause of action which has no relation to the set-off plead.

6. While the evidence may tend to show that defendant has a set-off based upon a breach of warranty, in making such a defense it would be incumbent upon defendant to plead and prove that he had given notice of the breach within a reasonable time after he knew or ought to have known of said breach. 8429 GC.

7. It was error therefore to admit evidence of the notice given in the absence of pleadings making it an issue; and for the court to submit to the jury this set-off on the theory that it was a cause of action ex delicto in favor of the defendant.

Judgment therefore reversed.  