Boyett v. Vaughan

• Court: North Carolina Supreme Court
• Writing for the Court: READE
• Citation: Boyett v. Vaughan, 79 N.C. 528 (N.C. 1878)
• Decision Date: 30 June 1878
• Parties: J. E. BOYETT v. THADDEUS VAUGHAN.

79 N.C. 528

J. E. BOYETT

v.THADDEUS VAUGHAN.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION tried on appeal from a Justice's Court, at January Special Term, 1878, of HALIFAX Superior Court, before Schenck, J.

The plaintiff in his complaint before the Justice of the Peace claimed that the defendant was indebted to him in the sum of $105 for lumber, and the defendant denied the debt and pleaded a counter claim due by note from the plaintiff to him for $200. The Justice gave judgment in favor of defendant for $69.13, the excess of his counter claim, and plaintiff appealed. When the case came on for trial in the Superior Court, the defendant moved for judgment because there was no replication denying the counter claim. The Court refused the motion and allowed the plaintiff then to put in his replication.

The plaintiff's replication alleged that the note was for part of the purchase money for land sold and conveyed to him by defendant, and that there was a parol agreement at the time of sale that the defendant should pay him four dollars per acre for every acre the land might fall short of its estimated quantity of four hnndred acres, and that the deficiency was eighty-three acres, for which at that rate he set up a counter claim. The counter claim was denied by defendant.

Issues were submitted to the jury and they found that defendant did agree to pay for the deficiency in the land, and that the deficiency was eighty-three acres as alleged by the plaintiff. The land was conveyed to plaintiff by deed in January, 1874, and about a year thereafter reconveyed by him to defendant to secure the said note and other debts he owed the defendant. The defendant moved for judgment notwithstanding the verdict which the Court denied and caused the following entry to be made: “Upon suggestion of a diminution of the record as shown by the transcript of the Justice, the plaintiff is permitted by the Court to file his replication and counter claim to the answer and counter claim of the defendant, and the transcript is ordered to be amended accordingly.” The plaintiff was also allowed to remit $57,06 of his claim on account of the deficiency in the land, to which defendant excepted, and thereupon judgment was rendered for plaintiff against defendant for $200 and interest from the 21st of January, 1878, and costs, and the defendant appealed.

Messrs. Mullen & Moore, for plaintiff .

Mr. T. N. Hill, for defendant .

READE, J.

The question is as to what defence a plaintiff may make to a counter claim on the part of the defendant. C. C. P., § 105 provides that “when the answer contains new matter constituting a counter claim the plaintiff may * * * reply to such new matter, * * * and he may allege * * * any new matter not inconsistent with the complaint constituting a defence to such new matter in the answer.”

It is insisted that the plaintiff can not allege new matter to the counter claim, but is confined to a reply to the counter claim, or by denying it altogether, or by confessing and avoiding it. That is error however and grows probably out of considering that § 101 governs it. But § 101 relates only to the answer. § 105 which relates to the reply governs it, and provides expressly that the plaintiff may not only reply to the defendant's counter claim but may allege “new matter” which has no connection with the matter alleged in the complaint, or the new matter alleged in the answer, the only restriction being that it shall not be inconsistent with the complaint,--“any new matter not inconsistent with the complaint constituting a defence to such new matter in the answer.”

It is not necessary that we should give a reason for this, because a statute is arbitrary and is good without a reason; but it would be inconvenient and unjust if it were otherwise. Before C. C. P. a defendant could plead a set off to plaintiff's claim and defeat the plaintiff's recovering in whole or in part as the case might be, but the defendant could not recover his set off and have judgment against the plaintiff; but under C. C. P. he may not only defeat the plaintiff, but have judgment against the plaintiff for the excess of his counter claim. And it would be manifestly unjust to deprive the plaintiff of a defence to the counter claim which is set up not only to defeat his action but to subject him to a judgment upon the counter claim.

In our case the plaintiff claims a lumber bill against the defendant. Very well, says the defendant, I owe it, but you owe me a balance for a tract of land you bought of me. Very well, says the plaintiff, I owe it, but you owe me on account of that same land transaction. It was certainly contemplated by the C. C. P. that all these matters might be settled in the same suit.

We do not think that there is any force in the defendant's objection that the plaintiff can not prove his new matter by parol, because he does not seek by parol to contradict the written contract about the land. The contract by parol which he sets up is consistent with the written contract and is outside of it. Judgment affirmed and judgment here.

SMITH, C. J., Dissenting.

In my opinion there was error in permitting the plaintiff to put in his replication and in the judgment which was rendered:--

A set off is but a defence to the action, and its office is to make an appropriation of money which the plaintiff owes the defendant to the discharge in whole or in part of the demand asserted in the suit. It can go no further than to defeat the action. It differs from a counter claim only in the disposition made of the excess, if there be an excess, of the counter claim over the sum due the plaintiff, and in allowing the defendant to have judgment for such excess. They are essentially alike in the rules of pleading which are applicable to them. I think it clear from the authorities and upon sound reasoning that the defendant alone can set up the defence. Some of them will be referred to. In Ulrich v. Berger, 4 Watts & Sergt. (Penn.) 19, the Court thus lays down the doctrine: Set off is a creature of positive law and exists only when it is allowed by law. Our act allows it only in favor of the defendant, and there consequently can...