Bank v. . Wilson , 124 N.C. 561 ( 1899 )

This is the appeal of the defendant manufacturing company in the preceding case between the same parties, involving, however, an entirely different question of law. The plaintiff brought this action upon the promissory note of the defendant manufacturing company, endorsed by said Wilson. The defendant company filed its separate answer as follows:

1. "That after the suit was brought in this case by the plaintiff bank, it failed, and the plaintiff, L. A. Bristol, was made permanent receiver, and is made party plaintiff, at this term of the court; that he is now pressing this cause against defendants to create assets in his hands."

2. "That at the time of the failure of said bank, on 2 December, 1898, this defendant was a depositor, and had to its credit on the books of said bank the sum of $100.36, which sum is still due and owing to this defendant, and defendant now pleads the said sum of $100.36 as a counterclaim against the debt of the plaintiff."

The defendant company admitted the execution of the note in suit and that its said counterclaim was not in existence when this action was brought. The plaintiff admitted the facts alleged in the separate answer of the defendant company, but demurred ore tenus to the answer of (570) said company, on the ground that the said counterclaim was not in existence when this action was brought. The demurrer was sustained, and the defendant company appealed.

We see no error in the ruling of the court below. As we have said inElectric Co. v. Williams, 123 N.C. 51, the counterclaim, as it now exists, is the creature of The Code, being provided for in section 244, which is as follows: "The counterclaim mentioned in the preceding 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 counterclaim of the defendant company has no connection whatever with the plaintiff's original cause of action, and hence must come under the second class, which is available only when existing at the commencement of the action.

We see no ground for equitable interference. The defendant company deposited money to its own credit with the plaintiff after the plaintiff had brought suit on a note in which the defendant company was the principal debtor. It may seem hard that the plaintiff should collect its own debt in full, and also keep the money of the defendant, but it is the defendant's own fault. It might have applied this money to the payment of its own debt; but if it failed or refused to do so, it must abide the consequences of its own act. It may be that it relied on the defense of its codefendant Wilson, and preferred to keep its money where it could be drawn in case of need. Whatever may have (571) been the motive, it was a deposit and not a payment, and, occurring after the bringing of the action, cannot be set up as a counterclaim.

NO ERROR.

Cited: Griffin v. Thomas, 128 N.C. 313; Bank v. Lennon, 170 N.C. 11;Sewing Machine Co. v. Burger, 181 N.C. 251.