State ex rel. Swain County v. Welch

208 N.C. 439

• Court: Supreme Court of North Carolina
• Decided: September 18, 1935
• Status: Published

Opinion

ScheNck, J.

The single exceptive assignment of error is to the signing of the judgment as appears in the record, and this presents the single legal proposition as to whether the defendants, the treasurer of Swain County and his official bondsmen, can successfully set up as a counterclaim past-due bonds and coupons of the county against the amount admittedly due Swain County by them on the official bond signed by them by reason of the failure of said treasurer to pay said county the full amount due by him to it.

This action arises upon the officiál bond of the treasurer, a contract. The counterclaim of the defendants arises upon the past-due bonds of the plaintiff county, also contracts. The counterclaim, according to the agreed facts and stipulations, existed in favor of tbe defendants and against tbe plaintiff at tbe commencement of tbis action, and several judgments might bave been bad between tbe plaintiff and defendants. Tbe plaintiff might bave recovered judgment on tbe treasurer’s bond, and tbe defendants might bave recovered judgment on tbe county’s past-due bonds. Therefore, tbe counterclaim set up by tbe defendants falls clearly within tbe provision of C. S., 521, which reads: “Tbe counterclaim mentioned in tbis article must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be bad in tbe action, and arising out of one of tbe following causes of action: (1) . . . (2) In an action arising on contract, any other cause of action arising also on contract, and existing at tbe commencement of tbe action.” Tbe reasoning in Bourne, v. Board of Financial Control, 207 N. C., 170, is apposite to tbis case.

There is nothing in tbe agreed state of facts to indicate that tbe amounts for which tbe treasurer bad failed to account “represented collected taxes which were levied for certain specific purposes,” as contended in appellant’s brief. All that appears in tbe record is that such amounts were “money and funds coming into bis bands belonging to- said county.” Nor does it appear that tbe bonds held by tbe defendant are other than general obligations of tbe county, payable out of its general funds.

Tbe judgment of tbe Superior Court is

Affirmed.