Bates v. Sierra Nevada Lake Water & Mining Co.

         1. If those portions of the answer stricken out constitute any ground of action in favor of defendant against plaintiff, such action must be ex delicto, as it does not arise out of the contract sued on, nor is it connected with the subject of the action. It is in the nature of a cause of action for slander, if it amounts to anything at all. A cause of action in tort cannot be pleaded by the defendant in action ex contractu, either by way of set off, counter claim, or recoupment. (McAllister v. Reab, 4 Wend. 483; 8 Id. 109; Batterman v. Pierce, 3 Hill, 170; Cram v. Dresser, 2 Sand. 125; Van Santvoord's Plead. 559, et seq.; Pr. Act, secs. 47, 48.)

         After the objectionable portions of the answer were stricken out, sufficient remained to have allowed the defendant to prove any failure of plaintiff to perform the contract on his part, or any negligence or carelessness.

         2. The notice was requiredto be given by the defendant. No action on the part of the defendant was shown, before the twenty-third day of July, 1859. The defendant is a corporation, under the laws of California, having its property and place of business in this State. The notice given by Josiah Bates does not purport to come from or to be the action of the defendant. (Wood's Dig. art. 484.)

         JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.

         OPINION

          BALDWIN, Judge

         We think the Court did not err in striking out the parts of the answer to which objection was taken by the plaintiff. This matter seems to be rather in the nature of a tort than matter showing a violation of contract on the part of the plaintiff. The remainder of the answer, after the expunged portion, was sufficient to let in any proper proof of a violation of the contract by inattention to or neglect of the business of the defendant.

         As to the second point, we think the notice contemplated by the contract was notice from the corporation organized and doing business in this State, and not notice of instructions from the committee of the London agency.

         Judgment affirmed.