Graham v. McCoy

OPINION on re-hearing.

Reavis, J.

On petition for rehearing in this cause our attention is directed to an error in the order for entry of judgment in the superior court given in the decision. The superior court was directed to enter judgment in favor of the defendants for the difference existing between the counterclaim of $3,000 and the balance due on the mortgage. We had overlooked the fact that this is a suit by the assignee of the mortgage and contract of the mortgagee and that the defendants can only plead damages for breach of the original contract as a defense against the claim of plaintiff. Code Proc., §§ 145 and 813.

The decision is therefore modified, and the superior court directed to allow defendants’ counterclaim to offset plaintiff’s demand, it not exceeding the amount of the counterclaim, but that no judgment beyond costs go against plaintiff in any event.

We have examined the whole petition for re-hearing and are satisfied with the conclusions heretofore reached in the cause.

Soott, C. J., and Anders, Dunbar and Gordon, JJ., concur.