
    COUNTERCLAIM AND SET-OFF — PLEADING
    [Cuyahoga (8th) Circuit Court,
    May 8, 1911.]
    Winch, Henry and Jones, JJ.
    Judge Jones of Fourth Circuit Sitting in Place of Judge Marvin.
    George A. Williams v. Leo Ederer.
    1. Counterclaim for Finding Letter Causing Discharge from Employment not Proper in Action on Account.
    In an action on an account for goods sold and delivered, the defendant can not set up as a counterclaim, a cause of action in tort, growing out of the sending of a letter by plaintiff’s attorney to defendant’s employer, whereby the defendant lost his job.
    2. Objection to Counterclaim Raised by Objection to Introduction of Evidence Notwithstanding no Demurrer Filed.
    Objection to such a counterclaim may be taken at the trial, by objection to the introduction of any evidence under the counterclaim, even though no' demurrer was filed to it and an answer was filed.
    
      Weed, Miller & Rothenberg, for plaintiff in error.
    
      Howland, Moffett & Niman, for defendant in error.
   WINCH, J.

Lederer sued Williams on an account for goods sold and delivered. Williams filed an answer and cross-petition, and Lederer then filed a reply. The ease was tried to a jury, with verdict and judgment for Lederer.

In this court the main contention of Williams is with regard to the charge and certain requests to charge, all as bearing upon the first cause of action set up in his cross-petition. That cause of action was for a tort growing out of the sending of a letter by Lederer’s duly authorized attorney to Williams’ employer, whereby he lost his job.

There was no prejudicial error in the charge if this counterclaim was not properly before the court.

It is not every cause of action which a defendant claims against the plaintiff that may be set up by him as a counterclaim. While See. 11315 G. C. says that the defendant may set forth in his answer as many grounds of counter-claim as he may have, Sec. 11317 G. C., defines a counterclaim as “a cause of action existing in favor of a defendant against a plaintiff or another defendant or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

Manifestly the sending of the letter to Williams’ employer a long time after he had purchased the goods, had nothing to do with the purchase of the goods, nor was it connected with the subject of the action, which was on an account due from Williams to Lederer.

Indeed, the learned counsel for plaintiff in error does not seriously contend that the cross-petition pleads a counterclaim proper to be set up in this action, but, he says, objection thereto should have been taken by demurrer and was waived by filing a reply containing an answer to said counterclaim.

That demurrer would lie to this counterclaim appears from Sec. 11323 and 11324, G. C. Among other grounds for demurrer to a counterclaim these sections mention: that on its face it is insufficient in law; that the facts stated do not constitute a counterclaim, and that the counterclaim does not state facts which entitle the defendant to the relief granted.

There is a provision of law (Sec. 11311 G. C.) to the effect that if a defendant does not raise an objection to a petition by demurrer, the ground of the objection appearing on the face of it, he shall be deemed to have waived it, except only that the court has no jurisdiction of the subject of the action and that the petition does not state facts which show a cause of action.

There is no such provision with regard to a plaintiff’s failure to demur to a counterclaim and we see no reason why any application of the rule governing failure to demur to a petition should be made to a failure to demur to a counterclaim. Other provisions of law take care of the latter case and the statutes are so specific on the subject of demurrers, that no effort should be made to extend them by implication to take in eases not thus specifically provided for.

There is no question that had no objection been raised by the plaintiff to the trial of the counterclaim in the same action with his claim on the account, though it would be an improper intermingling of two separate and independent suits in one action, still a reviewing court would not reverse a judgment thus obtained by the parties’ acquiescence.

But the plaintiff objected in time to the introduction of any evidence under the counterclaim. We think that he thereby saved his rights. The practice of answering over and objecting to the introduction of any evidence under a petition, on the ground that it does not state facts which show a cause of action, is common and approved, and we think the statutes regulating demurrer to a counterclaim authorize the same practice.

There are authorities strictly in point on this subject cited by counsel for defendant in error. McDougall v. McGuire, 35 Cal. 374, and Smith v. Hall, 67 N. Y. 48.

"We have examined the statutes of both of said states and find them almost identical with the statutes of this state on the same subject.

It is urged that by holding as indicated an injustice is done plaintiff in error in that the finding against him in this action on his counterclaim may be pleaded against him as res ad judicata should he hereafter desire to sue upon the cause of action stated in said counterclaim.

We express no opinion upon this subject, but call attention to the privilege accorded a party in such situation by Sec. 11337 G. C., which Williams might have taken advantage of.

The only other error complained of is a ruling on evidence.

We think it was perfectly proper for Williams to meet the point sought to be made by Lederer that the former had done nothing whatever to arrange for settlement of the latter’s claim. This he was permitted to do by showing that he turned the matter over to his attorney, and that his attorney wrote a letter to Lederer’s attorney. The letter itself, however, was inadmissible, being of a self-serving nature.

Judgment affirmed.

Henry and Jones, JJ., concur.  