SPALDING, Ch. J. (after stating the facts). Were the counterclaims as pleaded subject to attack on the grounds stated in the objections? This court has repeatedly held that where a pleading is attacked by motion or objection to the reception of evidence on the trial, it will be construed more liberally in favor of the pleader than when the attack is made by demurrer. Weber v. Lewis, 19 N. D. 473, 34 L.R.A. (N.S.) 364, 126 N. W. 105; Donovan v. St. Anthony & D. Elevator Co. 7 N. D. 513, 66 Am. St. Rep. 674, 75 N. W. 809; Walters v. Rock, 18 N. D. 45, 115 N. W. 511. See also First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473; Gjerstadengen v. Hartzell, 8 N. D. 424, 79 N. W. 872, 6 Enc. Pl. & Pr. 276.

Section 6859, Rev. Codes 1905, provides: "The answer of the defendant must contain: "2. A statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition."

Section 6860 reads: "The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

"1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.

"2. In an action arising on contract, any other cause of action arising also on contract and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they are such as have been heretofore denominated legal or equitable or both. They must each be separately stated, and refer to the causes of action which they are intended to answer in such manner that they may be intelligibly distinguished."

Respondent has apparently briefed this proposition on the theory that 2 of 6860, supra, is applicable. Herein he is in error. The transaction set forth in the complaint as the foundation of the plaintiff's claim is the giving of the notes, and the contract for the purchase of the land was the transaction out of which the whole difficulty arose. Without the land contract there would have been no notes; hence we are of the opinion that the causes of action attempted to be set forth in the counterclaims arise out of the contract or transaction set forth in the 24 N. D.-33.

complaint, and that they are connected with the subject of the action, and come under subdivision 1. It does not, therefore, follow that the acts to be done by either the plaintiff or defendant must have been contracted to be done before the commencement of the action, nor does it follow that the acts on the part of the defendant alleged to have been done must have been done before the commencement of the action. The counterclaim provided for in the section of the Code quoted was intended as a substitute for both set-off and recoupment under the old procedure. Set-off could only take place in actions on contracts for the payment of money and all mutual liquidated debts or damages, and the statutes referring to set-offs refer only to mutual, unconnected debts. The principle upon which they are based is that mutual debts between the parties are extinguished either pro tanto or totally, thus preventing a multiplicity of suits. Paragraph 2 of § 6859, supra, is applicable to setoffs, while ¶ 1 applies to what was formerly termed a recoupment, and is confined to matters arising out of, and connected with, the transaction or contract upon which the suit is brought, and regardless of whether they are liquidated or unliquidated, and this right was given by the common law. 2 Estes, Pl. 3d ed. ¶ 3364, and authorities cited; 34 Cyc. 6821; Northwestern Port Huron Co. v. Iverson, 22 S. D. 314, 133 Am. St. Rep. 920, 117 N. W. 372. The authorities to which we refer are ample to sustain this proposition. Respondent cites numerous authorities which he contends sustain his position, but on a careful examination we find they all relate to independent contracts or set-offs.

Respondent urges that if, in fact, such acts were not done until after the commencement of the action, defendant should have made application for leave to serve a supplemental complaint or answer alleging the facts material to his causes of action occurring after the former pleading was made. Even if this were necessary, where the first paragraph of § 6860, supra, is applicable, and even if the acts attempted to be pleaded, or any of them material, were done after the commencement of th action or after the original answer was served, the legal effect of defendant's amended answer in which his counterclaims are contained is identical with the effect of the same answer had it been denominated a supplemental answer. It was served on leave of court, its due service was admitted by counsel for respondent, and it was retained by him. without objection. It would be splitting hairs, if these acts were done

at a time when a supplemental answer would have been the proper technical pleading, to set this amended answer at naught simply because it is not designated a supplemental answer.

Section 6887, Rev. Codes 1905, provides that a supplemental complaint, answer, or reply, alleging facts material to the case occurring after the former complaint, answer, or reply, or of which the party was ignorant when his former pleading was made, may be allowed on motion. It will be seen from this section that the legislature has contemplated the making of a defense or the assertion of counterclaims which may have arisen after the former pleading, so the fact that the cause of action arose before or after the serving of the original answer is in this case immaterial, unless a case is presented in which the exact time when the acts were done or were to be done is a vital element. The mere misnomer in designating a pleading as an amended pleading, instead of a supplemental pleading, has no effect where the substantial rights of the parties are not affected thereby, and an additional pleading may be treated as supplemental, even though designated as an amended pleading. Bank of Chadron v. Anderson, 6 Wyo. 518, 48 Pac. 197, 49 Pac. 406; Seevers v. Hamilton, 11 Iowa, 66; Howard v. Johnston, 82 N. Y. 271; Cincinnati v. Cameron, 33 Ohio St. 336; 21 Enc. Pl. & Pr. 13.

Now as to the objections to the counterclaims as pleaded. Unquestionably there are many causes of action in which time is of the essence and should be stated, but this pleading does not disclose such a condition or necessity. The mere pleading in the form that it is pleaded, that these acts had been done, and all in connection with the giving of the notes, or growing out of their execution and delivery, in itself shows that they could not have been done earlier than the notes were given nor after the amended answer was served. The conditions are such as to render any inference that they occurred prior to or later than such times impossible. The acts were done or were to be done, not with third parties, but between plaintiff and defendant, and as far as disclosed it was not important that any one of them should be done or an offer made to do it on any fixed date. The repeated use of the word "thereupon" implies that the act referred to followed shortlyafter the act or fact on which it was predicated. We are of the opinion that they state the time with sufficient certainty to render the plead

ing immune to the objection made. The answer setting up the counterclaims stated the main facts necessary to constitute affirmative causes of action existing at the time the answer was served; and if the plaintiff deemed it too uncertain or too indefinite as to time or other necessary ingredients to raise a clear issue, his remedy was by motion to make more definite and certain, or by a demand for a bill of particulars; and not having availed himself of either of these remedies, for a period of more than ten months after the answer containing the counterclaims was served, or until the motion of defendant for judgment, he had waived his right to object on the grounds stated, even if time should have been more definitely pleaded. First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473; 19 Enc. Pl. & Pr. 761; Puffer v. Lucus, 101 N. C. 281, 7 S. E. 734. See also Stensgaard v. St. Paul Real Estate Title Ins. Co. 50 Minn. 429, 17 L.R.A. 575, 52 N. W. 910, and Noble Twp. v. Aasen, 8 N. D. 77, 76 N. W. 990. We hold, therefore, that plaintiff's objection was not available in the form and at the time made.

Neither of the objections raised any question as to the facts pleaded constituting a proper counterclaim in this action (if well pleaded), and as this could only have been raised by demurrer it is unnecessary to pass upon such question. First Nat. Bank v. Laughlin, 4 N. D. 391, 61 N. W. 473; Noble Twp. v. Aasen, 8 N. D. 77, 76 N. W. 990.

Numerous other objections to the counterclaims are now for the first time raised. They need not be specified as they are covered by our answer to other contentions of respondent, or were waived by not including them in his objections to the pleading in the trial court. First Nat. Bank v. Laughlin, supra. We conclude that the court erred in sustaining respondent's objections, on the grounds stated.

The order denying appellant's motion is reviewable on appeal from the judgment, under § 7226, Rev. Codes 1905.

The defendant was entitled to judgment upon his counterclaims on his motion submitted October 28, 1910, as against any objection made or considered by the trial court.

Section 6863, Rev. Codes 1905, provides for a reply to a counterclaim. Section 6878 provides that every material allegation contained in a counterclaim not controverted by a reply shall, for the purposes of the action, be taken as true; and § 6864 authorizes the defendant to

move, on notice of not less than ten days, for such judgment as he is entitled to upon the statements of his counterclaim, in case the plaintiff fails to reply or demur thereto within the time prescribed by law. These provisions are directly in point, and were authority for the motion submitted October 28, 1910, by defendant for judgment upon the counterclaims. See also Power v. Bowdle, 3 N. D. 107, 21 L.R.A. 328, 44 Am. St. Rep. 511, 54 N. W. 404; Heebner v. Shepard, 5 N. D. 56, 63 N. W. 892; Noble Twp. v. Aasen, 8 N. D. 77, 76 N. W. 990; Dunham v. Travis, 25 Utah, 65, 69 Pac. 468; Jarvis v. Peck, 19 Wis. 74; Moyer v. Gunn, 12 Wis. 386. In the absence of some reason in this instance for requiring evidence to be submitted, the defendant was entitled to judgment. His motion was not denied on the ground that the court, in the exercise of any discretion vested in it, desired to hear evidence, and the nature of the counterclaims was not such as to make the submission of evidence necessary to the entry of judgment, as might be in the case of an accounting or assessment of damages.

The foregoing are all the questions necessary to be decided upon. this appeal. The judgment of the District Court is reversed, and it is directed to enter a judgment in appellant's favor canceling the notes in controversy upon his depositing in that court a deed, properly executed, conveying to the respondent the premises described in the deed set out in appellant's answer. The appellant will recover his costs.

PUTNAM v. PROUTY.

(140 N. W. 93.)

contemporaneous agreement proof of

Written contract evidence. 1. Plaintiff and defendant entered into a written contract, whereby the former turned over to the latter certain farming lands, stock, and machinery in Eddy county under an arrangement by which defendant was to farm the land, and feed and care for the stock, at his own expense, for a period of

Note. For note on question of parol evidence to show intention of parties to written contract, se 17 L.R.A. 273.