Lawing v. Wheeler

61 S.E.2d 341, 232 N.C. 517, 1950 N.C. LEXIS 553

Opinion

PaeNhill, J.

An inspection of the record renders it quite apparent that the further answer of defendant Yirginia Wheeler fails to state a cause of action. Sbe denies that she -claims any rights under the lease contract. She does not assert the falsity of the statements alleged to have been made by plaintiffs or that they adversely affected any rights she possesses, but that they were uttered in derogation of the rights and to the hurt of defendant A. C. Wheeler. She may not recover for any injury suffered by her codefendant.

While the cross action of defendant A. C. Wheeler is likewise materially defective, we may concede, without deciding, that it is sufficient to state á cause of action. Even so, it is bottomed on a separate, independent tort. It may not be pleaded as a counterclaim in this action. Hancammon v. Carr, 229 N.C. 52, 47 S.E. 2d 614, and cases cited; Wingler v. Miller, 221 N.C. 137, 19 S.E. 2d 247.

The subject is fully discussed in the Hancammon case. What is said there is pertinent here. Mere repetition of the same principles of law will serve no useful purpose. Suffice it to say that the tort this defendant attempts to allege does not constitute a cause of action pleadable by way of cross action to plaintiffs’ action founded on alleged breach of contract.

The judgment is

Affirmed.