recover an affirmative judgment against the intervener either because of matters growing out of the intervener’s claim or by establishing a counterclaim the same as a defendant in an ordinary action.
Appeal from District Court, Burleigh County; Winchester, J.
Action by William Braithwaite against Akin and others. William Rea and George F. Robinson, partners as Robinson, Rea & Co., and others intervened. To the complaint in intervention, plaintiff, Braithwaite, answered, setting up counterclaims. To this answer interveners demurred. From an order overruling their demurrer, interveners appeal.
Reversed.
Louis Hanitch, F. H. Register and Edgar W. Camp, for appellants.
A single count of a complaint cannot be permitted to combine several kinds of action as one in tort, one for money demand on contract, and one in equity. Supervisors v. Decker, 30 Wis. 624; Schuenert v. Koehler, 23 Wis. 523; Rothe v. Rothe, 31 Wis. 570; Anderson v. Case, 28 Wis. 505; Johanneson v. Borschenius, 35 Wis. 136; DeGraw v. Elmore, 50 N.Y. 1; Ross v. Mather, 51 N. Y. 108; Walter v. Bennett, 16 N. Y. 250. In the present case the wrong done is the conversion of plaintiff's property, not the mere breach of an agreement to deliver property to him. Smith v. Frall, 57 N. Y. 48. The counterclaim sets out facts showing plaintiffs ownership—the conversion and the value of the boat. It is true plaintiff might have waived the tort and sued upon an implied contract. Star Cash Car Co. v. Reithart, 20 N. Y. S. 872; Norden v. Jones, 33 Wis. 600. But the allegations do not admit of such con- struction. The counterclaim does not set forth a violation of any contract right, but the violation of a non-contract right. Schuenert v. Koehler, 23 Wis. 523; Smith v. Hall, 67 N. Y. 48; Edgerton v. Page, 20 N. Y. 281; Thorpe v. Philbin, 3 N. Y. S. 939; Boreal v. Lawton, 90 N. Y. 293; Woodruff v. Garner, 27 Ind. 4; Peo. v. Dennison, 84 N. Y..272. The counterclaim does not state a cause of action connected with the subject of the action. Thorpe v. Philbin, 3 N.Y. S. 939; Burgman v. Burr, 46 N.
