Smith v. Young Bros.

13 S.E. 735, 109 N.C. 224

• Court: Supreme Court of North Carolina
• Decided: September 5, 1891
• Status: Published

Opinion

Avery, J.:

In furtherance of the general purpose pervading The Code system of pleading to prevent a multiplicity of actions, when the controversies between the parties can be settled without the expense and delay incident to the old practice, the language of our statute (§ 244 of The Code, with subsections 1 and 2) was made very comprehensive, and interpreting it in the spirit that animated those who enacted it, we should certainly be slow to restrict its operation so as to prevent the pleading as a counter-claim of any demand within the statutory definition liberally construed.

Subsection 1 embraces, first, causes of action arising either out of the contract or transaction set forth in the com-, plaint as the foundation of the action, and in giving effect to this clause it has been held not only that the defendant could plead a counter-claim growing out of the contract sued on, but that where action is brought for what would have been formerly denominated a tort, the defendant may set up a claim arising out of contract, if it also arises out of the same transaction or vice versa. Bitting v. Thaxton, 72 N. C., 541; Walsh v. Hall, 66 N. C., 233.

But the last clause of the subsection is even broader— permitting the party brought into court to meet a demand, whether purporting to arise out of contract or tort, by setting up, as a counter-claim, any state of facts “connected with the subject of the action” which would constitute sufficient ground for an independent action by the plaintiff against the defendant. But it cannot be maintained that dealings between the same parties, culminating in a settlement in which notes and mortgages on the crops of previous years were executed by the plaintiff, have any remote connection with the sale of the particular cotton out of which the controversy arose.

When the agent of the defendant weighed the cotton and gave the plaintiff a statement of the number of pounds to be taken to the defendants as evidence of the amount of cash due, which he agreed to pay, and by such promise induced the plaintiff to give up his cotton, the refusal of the defendants to pay, and their retention of the cotton after demand, was a wrongful conversion of the property to their use, and the plaintiff had the right to recover its value ($47.32) in the action before the Justice of the Peace. Carraway v. Burbank, 1 Dev. 306; Ragsdale v. Williams, 8 Ired., 498. The defendants bought for cash and were bound to pay the money or return the cotton. A man cannot take property wrongfully and apply the value of it rightfully, even in discharge of a just debt due him from the owner. If toleráted, it would prove a dangerous and demoralizing method of collecting debts. The sale was properly treated as a nullity by the Court, upon the general principle that a purchase made with the intent to get the property without paying for it is fraudulent, and voidable at the instance of the seller. 1 Benjamin on Sales, § 656 and note 18; Donalson v. Farwell, 93 U. S. Rep., 631. If a suit, in the nature of an action for conversion, is brought and can be maintained, then a defendant will not be allowed to set up a debt as a counter-claim under subsection 2, because that, by its express terms, applies only where the action is brought to enforce a contract, and here the defendant did not elect to waive the tort.

For the reasons given, we think that the judgment of the Court below should be affirmed.

Judgment affirmed.