{
  "id": 11273692,
  "name": "THE MERRITT MILLING COMPANY v. ROBERT T. FINLAY et al.",
  "name_abbreviation": "Merritt Milling Co. v. Finlay",
  "decision_date": "1892-02",
  "docket_number": "",
  "first_page": "411",
  "last_page": "413",
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "category": "reporters:state",
      "reporter": "N.C.",
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        11275173
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      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "95 N. C., 151",
      "category": "reporters:state",
      "reporter": "N.C.",
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        11273350
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      "case_paths": [
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  "last_updated": "2023-07-14T18:14:37.916120+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE MERRITT MILLING COMPANY v. ROBERT T. FINLAY et al."
    ],
    "opinions": [
      {
        "text": "Clark, J.:\nIt is not necessary that we consider whether there was any evidence sufficient to go to the jury to support defendants\u2019 counter-claim, for we concur with his Honor that the slander charged as the basis thereof was not a counter-claim that could be pleaded to this action.\nThe plaintiff complains 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 counter-claim. This did not arise out of contract,-and therefore could not be pleaded under sub-section 2 of section 244 of The Code; nor could it be pleaded under the first sub-section thereof, because it did not \u201carise out of the contract or transaction which was the ground of the plaintiff\u2019s claim,\u201d nor was it \u201c connected with the subject of the action\u201d\u2014 the contract made by the acceptance of plaintiff\u2019s draft. Byerly v. Humphrey, 95 N. C., 151.\nThe record states that, upon the intimation of the Court, \u201c the defendants submitted to a non-suit upon their counterclaim, excepted and appealed.\u201d The appeal was premature, and would not lie till after a final judgment upon the plaintiff\u2019s cause of action. Walker v. Scott, 106 N. C., 56; Cameron v. Bennett, ante, 277.\nIt 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 ; Cameron v. Bennett, supra; State v. Hazell, 95 N. C., 623. This was probably an inadvertence, as the defendants admitted the acceptance was due when sued on and had not been paid, and relied solely upon the counter-claim 'by way of defence. We have, therefore, passed upon the point intended to be presented, as has been sometimes, though rarety, done by the Court upon sufficient cause to justify it. McBryde v. Patterson, 78 N. C., 412; State v. Lockyear, 95 N C., 638; State v. Divine, 98 N. C., 778; Guilford County v. Georgia Company, 109 N. C., 310.\nAppeal dismissed.",
        "type": "majority",
        "author": "Clark, J.:"
      }
    ],
    "attorneys": [
      "No counsellor plaintiff.",
      "Mr. Julius 0. Martin, for defendant."
    ],
    "corrections": "",
    "head_matter": "THE MERRITT MILLING COMPANY v. ROBERT T. FINLAY et al.\nSlander \u2014 Counter-claim.\u2014Pleading\u2014Judgment\u2014Appeal.\n1. Damages for slander cannot be set up as a counter-claim to an action for debt.\n2. Where, upon such plea, on the intimation of the Court an appeal was - taken: Held, the appeal was premature.\n3. An appeal lies only from a judgment.\nThis was a civil ACTION tried atibe December Term, 1891, of BuNCOMBE Superior Court by Merrimon, J.\nThe plaintiff sued for the amount of a debt.. The defendants pleaded as defence a counter-claim for damages for slander of the business. The facts sufficiently appear in the opinion.\nNo counsellor plaintiff.\nMr. Julius 0. Martin, for defendant."
  },
  "file_name": "0411-01",
  "first_page_order": 439,
  "last_page_order": 441
}