A1r. W. L. Raisin & Co. v. Thomas

• Decision Date: 28 February 1883
• Citation: 88 N.C. 148
• Court: North Carolina Supreme Court
• Parties: R. W. L. RAISIN & CO. v. S. M. THOMAS.

88 N.C. 148

R. W. L. RAISIN & CO.

v.S. M. THOMAS.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at January Special Term, 1883, of RICHMOND Superior Court, before Graves, J.

The plaintiff's action, begun before a justice of the peace, is to recover the amount of a note of the defendant for the sum of $200, with interest thereon, from March 1st, 1877.

The defendant answered, denying the consideration of the note, and setting up a counterclaim, in which he states the note was given for a lot of worthless guano, sold to him by the plaintiff, and represented to be good, to his damage two hundred dollars; and further, a counterclaim for other guano sold him also worthless and under similar representations as to quality, to his damage three hundred dollars. These counterclaims are denied in the plaintiffs' replication.

The cause was transferred by the defendant's appeal to the superior court, where the pleadings remained unchanged and issues were submitted to the jury, which, with the responses, are as follows:

1. What sum does the defendant owe the plaintiffs? Ans. Two hundred dollars, with interest.

2. What damages, if any, is the defendant entitled to on account of the matter set out in his alleged counterclaim? Ans. Two hundred and fifty dollars, with interest.

The defendant then proposed to remit the amount of the counterclaim found by the jury, in excess of two hundred dollars, to a sum sufficient to extinguish the plaintiffs' demand, and moved for judgment against them for costs. The court declined to do so, and rendered judgment for the plaintiffs upon their note, and the defendant appealed.

Messrs. Burwell, Walker & Tillett and J. T. LeGrand, for plaintiffs .

Mr. John D. Shaw, for defendant .

SMITH, C. J., after stating the facts.

It is only necessary to notice two exceptions:

1. It was in evidence that the note in suit was given and accepted for two others, in the respective sums of $500 and $300, held by the plaintiffs, and the defendant, as an instruction, asked the court to tell the jury that the plaintiffs could not recover because they had not surrendered these notes upon bringing their action. The court refused so to charge, and said that the omission would not defeat the plaintiffs' right to have a verdict, but that judgment would be withheld until they were delivered up. The notes were produced and deposited with the clerk. The issue with the jury was as to the defendant's indebtedness, and the verdict responsive thereto could not be obstructed by the absence of the notes for which that in suit was given. The subsequent surrender of them for cancellation met all the equities and rights of the defendant, and obviated all injurious consequences to him. The course pursued by His Honor was precisely that taken in Shields v. Whitaker, 82 N. C., 516.

2. The defendant's next and principal exception is to the refusal of the court to apply the damages, assessed and volutarily reduced, to the extinguishment of the plaintiffs' debt, and the rendition of judgment therefor in favor of the plaintiffs.

Whether the asserted counterclaim rests upon a broken warranty of quality or practiced deceit and fraud, it is wholly for damages alleged in the answer and ascertained by the verdict to be in a sum beyond the cognizance of the court of a justice, and equally so of the superior court exercising its appellate jurisdiction. What the justice could not try, the superior court on the appeal could not try; and in both, the setting up a counterclaim, which in our system is but another action between the same parties reversed, should not have...