Page:North Dakota Reports (vol. 3).pdf/405



Intervention—Counterclaim Not Connected With the Subject of the Action.

Plaintiff and interveners having recovered judgment against the defendants, the interveners claimed the money under a written contract with plaintiff. (See the contract referred to in the opinion.) Such contract provided that the interveners and the plaintiff (defendant in intervention) should contribute certain sums to a common fund with which to purchase the steamboat Eclipse, that the title should be taken in the names of plaintiff and another; that they should operate the boat, and pay over her earnings to the interveners, until their advances and certain claims of theirs against the boat were paid. After that the interveners’ interest in the contract was to cease, and the boat to belong absolutely to plaintiff and the other purchaser. The boat was purchased by plaintiff and the other person under the agreement, and it is for the earnings while plaintiff was operating her under the agreement that the plaintiff recovered judgment. The interveners claimed the money due under this judgment as money to which they were entitled under the agreement. Held, that the plaintiff (defendant in intervention) cannot set up as a counterclaim a a cause of action for the conversion of his interest in the steamboat referred to in such contract; that the cause of action for the tort did not arise out of the contract or transaction set forth in the intervention complaint as the foundation of the interveners’ claim, and is not connected with the subject of the action.

Equitable Set Off—Tort.

Nor could the cause of action for tort be sustained as an equitable set off, independent of statute, there being no averment that the interveners are insolvent. The mere fact that they are not residents of the state docs not warrant the application of the doctrine of equitable set off.

Cause of Action in Tort Not Set Off Against Cause of Action Upon Contract.

Even if the interveners were insolvent, equity would not allow the set off of a cause of action for an independent tort against a claim arising on contract.

Waiver of Tort—Recovery on Contract.

One whése property has been converted may waive the tort and sue for the benefits received by’ the wrongdoer, although he has not disposed of the property converted; but the intent to waive the tort must appear on the face of the pleading.

Judgment Against Intervener.

One who intervenes in an action subjects himself as fully to the jurisdiction of the court as if he had brought an original action against the person against whom his complaint in intervention is filed, and the defendant in intervention may