Harvey v. Oettinger

Staoy, C. J., after stating tbe case: Tbe demurrer, interposed by tbe appealing defendants was properly overruled. But from a careful perusal of tbe record, we are convinced that issuable matters have been set up by tbe answering defendants in their pleadings, and that appropriate issues should be submitted to a jury for a proper determination of tbe controversy. Barnes v. Trust Co., ante, 371. If tbe answering defendants have evidence to support tbe allegation that they endorsed tbe notes in question under a misapprehension of tbe facts, caused by a wrongful suppression of information on tbe part of tbe plaintiff, this would carry tbe case to tbe jury. Contribution arises out of tbe principle that “equality is equity” among those standing in tbe same situation. Moore v. Moore, 11 N. C., 358. Tbe defendants, by their allegations, deny that they stand in tbe same legal position with tbe plaintiff. Again, equity will not aid tbe plaintiff, if tbe losses in question, as alleged by tbe defendants, were occasioned by bis own wrongful act in wilfully refusing to carry out bis promise to finance tbe corporation, and such promise was a material inducement to tbe defendants to endorse tbe notes of tbe Kinston Knitting Company. But this is only an allegation, and it is denied. Tbe truth of tbe matter can be determined by a jury. We do not regard tbe principle announced in Douglass v. Dawson, 190 N. C., 458, with respect to tbe right of tbe receiver of an insolvent corporation to maintain an action for a wrong done tbe corporation as distinguished from tbe right of a creditor to maintain an action for a wrong done to him personally, controlling on tbe facts of tbe present record. Tbe action is for contribution, wbicb could arise only upon [485] payment by tbe plaintiff, and tbis seems to bave been made after tbe appointment of tbe receiver. 6 R. C. L., 1036; 13 C. J., 821. But however tbis may be, tbe defendants plead personal losses directly induced by plaintiff’s alleged wrongs, irrespective of tbe injuries alleged to bave been sustained by tbe corporation. These allegations, if sustained, would seem to be sufficient at least to defeat plaintiff’s action for contribution. There was error in rendering judgment on tbe pleadings as against tbe answering defendants. Error.