Merritt Milling Co v. Finlay

• Decision Date: 26 April 1892
• Court: North Carolina Supreme Court
• Parties: Merritt Milling Co. et al. v. Finlay et al.

15 S.E. 4

110 N.C. 411

Merritt Milling Co. et al.

v.Finlay et al.

Supreme Court of North Carolina.

April 26, 1892.

Action on Draft—Counterclaims—Blander. In an action for nonpayment of an accepted draft, a slander as to defendants' pecuniary standing cannot be set up by way of counterclaim under Code, § 244, providing that a counterclaim must be (subsection 1) a cause of action arising out of the contract or transaction on which the complaint is founded, or connected with the subject of the action, or, (subsection 2,) in an action on contract, another action arising on contract.

Appeal from superior court, Buncombe county; James H. Merrimon, Judge.

Action by the Merritt Milling Company and Foster Whiteside, trustee of said company, against Robert L. Finlay and J. D. Nelson, trading as Finlay & Nelson, on a draft. There was a nonsuit on a counterclaim for slander. Defendants appeal. Affirmed.

Chas. A. Moore and J. C. Martin, for appellants.

Clark, J. It is not necessary that we consider whether there was any evidence sufficient to 20 to the jury to support de-fendants' counterclaim, for we concur with his honor that the slander charged as the basis thereof was not a counterclaim that could be pleaded to this action. The plaintiffs complain that the defendants, being indebted to it, accepted a draft drawn on them by the plaintiff, and have failed to pay it. The defendants allege that the plaintiff slandered them as to their pecuniary standing, and injured their credit and business, and seek damages therefor by way of counterclaim. This did not arise out of contract, and therefore could not be pleaded under subsection 2 of section 244 of the Code, nor could it bo pleaded under the first subsection thereof, because it did not "arise out of the contract or transaction which was the ground of the plaintiff's claim;" nor was it "connected with the subject of the action, "—the contract made by the acceptance of plaintiff's draft. Byerly v. Humphrey, 95 N. C. 151. The record states that upon the intimation of the court the defendants submitted to a nonsuit upon their counterclaim, excepted, and appealed." The appeal was premature, and would not lie till after a final judgment upon the plaintiff's cause of action. Walker v. Scott, 106 N. C. 56. 11 S. E. Rep. 364; Cameron v. Bennett, 14 S. E. Rep. 779, (at this term.) It also did not lie because an appeal only lies from a judgment, and no judgment of any kind appears in the record. Taylor v. Bostic, 93 N. C. 415; ...