BANK V. WILSON, et al.

agreement to pay. It is not contended that the note in suit has ever been actually paid, or that it has been cancelled or surrendered. It was permitted to remain in the possession of the bank, and was turned over among its assets to the receiver. The testimony of the defendant, Wilson, that the Davis & Wiley Bank is still willing to carry out its part of the contract, if admissible, tends to prove an executory agreement; while the endorsement on the $1,500 note shows that it was transmitted to the plaintiff for collection entirely on account of the Davis & Wiley Bank, without admission of any interest whatever belonging to the plaintiff. Boykin v. Bank, 118 N. C., 566; Bank v. Bank, 119 N. C., 307. are not attempting to pass upon the weight of the evidence, for that function belongs to the jury; but we think that in the absence of any evidence more than a mere scintilla tending to prove the contention of the defendants, on whom rested the burden of proof, the Court should have directed a verdict in favor of the plaintiff. Spruill v. Insurance Co., 120 N. C., 141.

But if we are

We

mistaken in our view of the evidence, we are still of the opinion that the alleged agreement was beyond the scope of the agency of a Cashier, and without consideration, and therefore void. There is no pretence of consideration. The payment by the defendant, Wilson, of the $21.74 was simply the payment of a small part of that for which he was bound. We do not think that a Cashier can, without express authority, take in payment of a note a mere verbal assignment of an intangible interest in another note already held by another bank as collateral security. If the alleged contract operated as payment in full of the note in suit, then the plaintiff bank has absolutely nothing to show for the unpaid debt originally owing to it by the defendants, and still owing by somebody. Such transactions are not

BANK V. WILSON, et al.

within the ordinary dealings of a bank, and can not be encouraged.

It is scarcely necessary to cite authorities as to the effect of a nudum pactum, especially when made by an agent. Our view of the case renders it unnecessary for us to discuss the other questions raised by exception. For the reasons above stated a new trial must be ordered. New trial.

DEFENDANT'S APPEAL IN SAME CASE.

DOUGLAS, J. 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 the 2nd of 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 counter-claim was not in existence when this action was brought. The plaintiff admitted the facts alleged in the separate answer of the defendant

BANK v. WILSON, et al.

company, but demurred ore tenus to the answer of said company, on the ground that the said counter-claim 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 in Electric Co. v. Williams, 123 N. C., 51, the counter-claim, as it now exists, is the creature of The Code, being provided for in Section 244, which is as follows: “The counter-claim 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 counter-claim 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 are 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 acts. It may be that it relied on the defence of its co-defendant, Wilson, and preferred to keep its money where

STEVENS V. SMATHERS.

it could be withdrawn in case of need. Whatever may have been the motive, it was a deposit and not a payment, and, occuring after the bringing of the action, can not be set up as a counter-claim. We see no error in this appeal.

No error.

HENRY B. STEVENS, GEORGE A. SHUFORD and JAMES H. MERRIMAN v. C. L. SMATHERS and J. WILEY SHOOK.

(Decided May 2, 1899).

Land Mortgage-Trespass—Injury to Realty.

1. Where a house is wrongfully pulled down and removed from mortgaged land, all the participants in the wrongful act are trespassers.

2. Any one, who with the knowledge of all the circumstances allows the material to be used in the reerection of the building on his own land, sanctions the trespass, and renders himself liable for the value of the removed house.

CIVIL ACTION for special relief, tried before Hoke, J., at Spring Term, 1898, of HAYWOOD Superior Court.

The plaintiff, Merrimon, was the owner by assignment from plaintiff, Shuford, of a note for $1,000, executed by one D. M. Shook, and defendant, J. Wiley Shook, and secured by mortgage on house and lot from D. M. Shook and wife to plaintiff, Stevens, as trustee. In June, 1895, the defendant, J. Wiley Shook, without permission from trustee, or any one else, entered upon the mortgaged premises, and tore the house down and removed the materials to a lot occupied by him, belonging to defendant, Smathers, and reconstructed the house thereon, using some additional lumber. Shook con

STEVENS V. SMATHERS.

templated buying this lot, and on August 17, 1895, obtained a bond for title from Smathers for $250, but he never paid for the title. In a suit between them, the land was sold under decree of the Court by a commissioner, and was bought by Smathers at the contract price, and he now owns it.

There was evidence that Smathers knew of the tearing down of plaintiff's house by Shook, and the removal of the materials to the lot owned by himself.

The charge of his Honor, excepted to by defendants, is substantially stated in the opinion.

In response to the issues, the jury found:

1. That $339.25 was balance due on mortgage debt.

2. That defendants had wrongfully removed and detained said house and converted it to their own use.

3. That the value of the house was $150.

4. That the injury to the mortgaged premises was $150. Judgment was rendered against defendant, Smathers, for value of house, $150, as determined by the jury, and he appealed.

Messrs. Ferguson & Ferguson and Womack & Hayes, for C. L. Smathers, defendant (appellant).

Messrs. W. T. Crawford; Davidson & Jones; Merrimon & Merrimon, and George A. Shuford, for plaintiffs.

CLARK, J. The plaintiff had a mortgage on a house and lot, to secure a debt due by J. Wiley Shook. The latter tore down the house, removed it and re-erected it upon the land of the defendant, Smathers. The jury found that the house when torn down was worth $150, and that the mortgaged property was impaired that much in value by its removal. The Court charged the jury (there being evidence to sustain the charge) that if the removal of the house to the