Poly, Heilbron & Co. v. Williams

Citations

• 101 Cal. 648
• 36 P. 102
• 1894 Cal. LEXIS 1093

Syllabus

<p>Action Upon Contract—Counterclaim—Tort—Trespass—Promise.—Im an action upon a promissory note, a defendant may set up a counterclaim for an indebtedness upon an account for nursery stock, consisting of fruit trees and grapevines eaten up and destroyed by the hogs, cattle, and horses of the plaintiffs, before the commencement of the action, which the plaintiffs promised and agreed to pay to the defendant.</p> <p>Id.—Promise to Pay Stated Damages—While a counterclaim sounding-in tort cannot be set up as a defense to an action arising upon contract, yet a promise or agreement to pay a stated sum of money in full satisfaction of damages resulting from a tort becomes a matter arising upon contract, and as such may be properly pleaded as a counterclaim to an action founded upon contract.</p> <p>Id.—Express Promise.—Proof of an express promise or agreement is necessary in order to sustain such counterclaim.</p> <p>Id.—Pleading—Implied Promise—Express Promise.—An implied promise is a mere conclusion of law, and the facts from which such promise is. implied must under our system of pleading be stated; hut the rule is-different in the ease of an express promise, which is an ultimate fact, and must be pleaded as such, though the word “express” is not necessary to he used in pleading the promise. When a promise is alleged in. a pleading, it must be held to he express.</p>