Clark, J.
— after stating th'e facts: The plaintiff moved in this Court to strike out “ that part of the answer which sets up a counter-claim for damages, this action being in contract.” In a proper case, such motion here is allowable, because a counter-claim is a cross-action, and, if the Court below did not have jurisdiction, advantage can be taken of that defect in this Court.
Tucker
v.
Baker,
86 N. C., 1;
Bryant
v.
Fisher,
85 N. C., 69.
The plaintiff’s motion is on the ground that damages, being for a tort, cannot be pleaded as a counter-claim to an action on a contract. But damages are not necessarily for a tort. There are damages
ex delicto
and damages
ex contractu
for breach of contract. The counter-claim here set up belongs to the latter class.
Frœlich
v.
Southern Express Co.,
67 N. C., 1. Were this not so, still it is properly pleaded, as it “arises out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim.”
The Code,
sec. 244, sub-sec. 1;
Bitting
v.
Thaxton,
72 N. C., 541. The motion to strike out the counter-claim must be denied.
The first exception' to evidence, that defendant informed plaintiff that the horse was ailing, is without good ground. Its bearing was to corroborate defendant’s other evidence, that plaintiff was to keep the horse insured, and was notice to him of the necessity of keeping the premiums paid up.
The other three exceptions to evidence were properly overruled. The first two were as to statements by witnesses that McKinnon’s agreement was to pay the premium, and the last was to an admission by McKinnon to that effect. We fail to see the force of the exceptions.
The issue as to the insurance was submitted in the language of the pleadings, and 'was proper, unless an amendment had been asked and allowed in the discretion of the Court.
Nor do we-find anything in the case which tends to sustain the exception that the Court expressed an opinion upon
the facts. The exception made is too general to be considered. It was the duty of the appellant in his assignment of error to point out the language in the charge which he claims to be such expression of opinion.
The first and second prayers of instruction were based upon the idea that defendant was guilty of contributory negligence. The cases cited by the learned counsel for the plaintiff, are applicable in actions of tort, where it is shown that the party injured contributed by his own wrong; or by his negligence in not using reasonable care or prudence to avert the loss. “ The rule which denies relief to a plaintiff guilty of contributory negligence, is based less upon considerations of what is just to the defendant, than upon grounds of public policy, which requires, in the interest of the whole community, that every one should take such care of himself as can reasonably be expected of -him. It is a part of the same policy which regards suicide as a crime, which punishes vagrancy and idleness, and which has led some States to deal with confirmed spendthrifts as a species of lunatics. Waste or recklessness, even in respect to one’s own property, is an injury to the State, and, indeed, to the whole world. And though political economy has demonstrated the uselessness of attempting, by means of direct penal legislation, to reform such evils, it does not condemn those rules of law which, by making carelessness the means of its own punishment, teach caution, without attempting an impracticable severity.” Sherman & Redfield Negligence, sec. 42.
The doctrine of contributory negligence has no application to a case like this. The defendant claims damages for breach of contract — not in tort. If the contract was as alleged by defendant, then there was no obligation on him to notify plaintiff when premiums would fall due. . It did not interest the public that he should do so, and his failure to do it was not negligence. If the contract was as
alleged by plaintiff, there was simply no breach of it by him, and defendant could not recover on his counter-claim.
The third and fourth exceptions were properly refused for the same reason. If plaintiff’s version of contract was correct, then these instructions could have no application. If (as the jury found) the defendant’s statement was the true one, it was the plaintiff’s own fault that he took out an incorrect or incomplete policy. The policy was no part of the contract, but was an act done in pursuance of it. Its contents, if accepted by the parties, or either of them, was competent to corroborate, or contradict, the evidence as to what was the contract.
The objection that the verdict was against the weight of the testimony, was for the consideration of the Court below, and its decision is not reviewable. The jury found that the breach of warranty as to the eye-sight was $65, and by failure to insure $90, but the Court instructed the jury that both claims for damages, if allowed, could not exceed $130, the agreed value of the horse. As the Court gave defendant judgment for costs only, the plaintiff has no ground to complain that he^was damaged by any apparent inconsistency in the verdict.
The only exception remaining to be passed upon is “ to the charge as given.”
A general exception to the charge without assigning errors specifically will not be considered in this Court. The cases to this effect are numerous:
Lytle
v.
Lytle,
94 N. C., 522
Williams
v.
Johnstone,
94 N. C., 633;
Fry
v.
Currie,
91 N. C., 436;
Bost
v.
Bost,
87 N. C., 481;
Pleasants
v.
R. R.,
95 N. C., 195;
State
v.
Nipper,
95 N. C., 653;
McDonald
v.
Carson,
94 N. C., 497;
Barber
v.
Roseboro,
97 N. C., 192;
Boggan v. Horne,
97 N. C., 268;
Sellers
v.
Sellers,
98 N. C., 13;
Caudle
v.
Fallen,
98 N. C., 411;
Leak
v.
Covington,
99 N. C., 559 ;
Hammond
v.
Schiff,
100 N. C., 161;
Dugger
v.
McKesson,
100 N. C., 1; and there are others.
Sub-section 2, section 412- of-
The Code,
requires that exceptions to evidence, and other matters of objection, must be entered “
at the time,”
if not, they are waived.
State
v.
Ballard,
79 N C., 627;
Shields
v.
Whitaker,
82 N. C. 616;
Scott
v.
Green,
89 N. C., 278.
Sub-section 3, of same section, modifies that rule as to exceptions to the charge. It has been construed explicitly in
Lytle
v.
Lytle,
and other cases
supra.
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Clark, J.
— after stating th'e facts: The plaintiff moved in this Court to strike out “ that part of the answer which sets up a counter-claim for damages, this action being in contract.” In a proper case, such motion here is allowable, because a counter-claim is a cross-action, and, if the Court below did not have jurisdiction, advantage can be taken of that defect in this Court.
Tucker
v.
Baker,
86 N. C., 1;
Bryant
v.
Fisher,
85 N. C., 69.
The plaintiff’s motion is on the ground that damages, being for a tort, cannot be pleaded as a counter-claim to an action on a contract. But damages are not necessarily for a tort. There are damages
ex delicto
and damages
ex contractu
for breach of contract. The counter-claim here set up belongs to the latter class.
Frœlich
v.
Southern Express Co.,
67 N. C., 1. Were this not so, still it is properly pleaded, as it “arises out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim.”
The Code,
sec. 244, sub-sec. 1;
Bitting
v.
Thaxton,
72 N. C., 541. The motion to strike out the counter-claim must be denied.
The first exception' to evidence, that defendant informed plaintiff that the horse was ailing, is without good ground. Its bearing was to corroborate defendant’s other evidence, that plaintiff was to keep the horse insured, and was notice to him of the necessity of keeping the premiums paid up.
The other three exceptions to evidence were properly overruled. The first two were as to statements by witnesses that McKinnon’s agreement was to pay the premium, and the last was to an admission by McKinnon to that effect. We fail to see the force of the exceptions.
The issue as to the insurance was submitted in the language of the pleadings, and 'was proper, unless an amendment had been asked and allowed in the discretion of the Court.
Nor do we-find anything in the case which tends to sustain the exception that the Court expressed an opinion upon
the facts. The exception made is too general to be considered. It was the duty of the appellant in his assignment of error to point out the language in the charge which he claims to be such expression of opinion.
The first and second prayers of instruction were based upon the idea that defendant was guilty of contributory negligence. The cases cited by the learned counsel for the plaintiff, are applicable in actions of tort, where it is shown that the party injured contributed by his own wrong; or by his negligence in not using reasonable care or prudence to avert the loss. “ The rule which denies relief to a plaintiff guilty of contributory negligence, is based less upon considerations of what is just to the defendant, than upon grounds of public policy, which requires, in the interest of the whole community, that every one should take such care of himself as can reasonably be expected of -him. It is a part of the same policy which regards suicide as a crime, which punishes vagrancy and idleness, and which has led some States to deal with confirmed spendthrifts as a species of lunatics. Waste or recklessness, even in respect to one’s own property, is an injury to the State, and, indeed, to the whole world. And though political economy has demonstrated the uselessness of attempting, by means of direct penal legislation, to reform such evils, it does not condemn those rules of law which, by making carelessness the means of its own punishment, teach caution, without attempting an impracticable severity.” Sherman & Redfield Negligence, sec. 42.
The doctrine of contributory negligence has no application to a case like this. The defendant claims damages for breach of contract — not in tort. If the contract was as alleged by defendant, then there was no obligation on him to notify plaintiff when premiums would fall due. . It did not interest the public that he should do so, and his failure to do it was not negligence. If the contract was as
alleged by plaintiff, there was simply no breach of it by him, and defendant could not recover on his counter-claim.
The third and fourth exceptions were properly refused for the same reason. If plaintiff’s version of contract was correct, then these instructions could have no application. If (as the jury found) the defendant’s statement was the true one, it was the plaintiff’s own fault that he took out an incorrect or incomplete policy. The policy was no part of the contract, but was an act done in pursuance of it. Its contents, if accepted by the parties, or either of them, was competent to corroborate, or contradict, the evidence as to what was the contract.
The objection that the verdict was against the weight of the testimony, was for the consideration of the Court below, and its decision is not reviewable. The jury found that the breach of warranty as to the eye-sight was $65, and by failure to insure $90, but the Court instructed the jury that both claims for damages, if allowed, could not exceed $130, the agreed value of the horse. As the Court gave defendant judgment for costs only, the plaintiff has no ground to complain that he^was damaged by any apparent inconsistency in the verdict.
The only exception remaining to be passed upon is “ to the charge as given.”
A general exception to the charge without assigning errors specifically will not be considered in this Court. The cases to this effect are numerous:
Lytle
v.
Lytle,
94 N. C., 522
Williams
v.
Johnstone,
94 N. C., 633;
Fry
v.
Currie,
91 N. C., 436;
Bost
v.
Bost,
87 N. C., 481;
Pleasants
v.
R. R.,
95 N. C., 195;
State
v.
Nipper,
95 N. C., 653;
McDonald
v.
Carson,
94 N. C., 497;
Barber
v.
Roseboro,
97 N. C., 192;
Boggan v. Horne,
97 N. C., 268;
Sellers
v.
Sellers,
98 N. C., 13;
Caudle
v.
Fallen,
98 N. C., 411;
Leak
v.
Covington,
99 N. C., 559 ;
Hammond
v.
Schiff,
100 N. C., 161;
Dugger
v.
McKesson,
100 N. C., 1; and there are others.
Sub-section 2, section 412- of-
The Code,
requires that exceptions to evidence, and other matters of objection, must be entered “
at the time,”
if not, they are waived.
State
v.
Ballard,
79 N C., 627;
Shields
v.
Whitaker,
82 N. C. 616;
Scott
v.
Green,
89 N. C., 278.
Sub-section 3, of same section, modifies that rule as to exceptions to the charge. It has been construed explicitly in
Lytle
v.
Lytle,
and other cases
supra.
Instead of requiring that exceptions to the charge shall be noted
“at the time,”
it provides that the charge is deemed excepted to. This avoids the unseemly spectacle of counsel interrupting the retirement of the jury, by making exceptions in their hearing to the charge, and replying, as it were, to the instructions of law laid down to them by the Court. At the same time, it preserves to the losing side the right to have exceptions to the charge noted when it shall become necessary. It is, none the less, the duty of counsel to make out specifically an assignment of errors in the charge when making up the case on appeal. Such is the rule observed in this Court when it is claimed that there is error in the charge given. Indeed, a better practice would be to assign such errors on a motion for a new trial. It would be but fair to the appellant himself, as well as to the other side, to do this. It may be that, if the errors in the charge were called to the attention of the presiding Judge, he would himself award a new trial, and save parties the expense and delay of an appeal. When the error is an
omission
to charge as to some particular aspect of the case, it cannot be assigned as error, and become the subject of review, unless an instruction was asked for, and called to the attention of the Court.
State
v.
Bailey,
100 N. C., 528; which case cites
Simpson
v.
Blount,
3 Dev. 34;
Brown
v.
Morris,
4 D. & B., 429;
State
v.
O’Neal,
7 Ired., 251;
Arey
v.
Stephenson,
12 Ired., 34;
Hill
v.
Woodard,
12 Ired., 293; also, to same effect are the later
cases,
Davis
v.
Council,
92 N. C., 725;
Branton
v.
O’Briant,
93 N. C., 99;
Fry
v.
Currie,
91 N. C., 436;
State
v.
Debnam,
98 N. C., 712;
Terry
v.
Railroad,
91 N. C., 236;
Moore
v.
Parker,
91 N. C., 275. If the prayer for instruction is asked
in writing,
and in apt time, its refusal, or a failure to charge it, is deemed excepted to.
The statute
{The Code,
§957) requiring the Supreme Court to render such judgment, as shall appear to be proper from an
inspection of the whole record,
has reference only to the essential parts of the record, such as the pleadings, verdict, and judgment, in which, if there be error, the Court will correct it, though it be not assigned.
Thornton
v.
Brady,
100 N. C., 38.
We have taken the trouble to cite several of the reiterated decisions of the Court, that it may be seen that the law is “ well settled ” in this respect.
When specific assignment of error to the charge is made, it is only necessary to state, in the case on appeal, the part of the charge excepted to, and so much more as may be necessary to its proper understanding. When there is no error assigned to the charge, or (which is the same thing) an unpointed broadside challenge to the “ charge as given,” it is not usually necessary that the record be cumbered with any part of the charge.
We find no error, and the judgment below must be affirmed.
Affirmed.