(after stating the facts as above). [1] The contract of agency gave to the agents a lien on the auiomobiles consigned to them for the 85 per cent, of the purchase price advanced, and for freight, and required them to maintain insurance on the goods for their protection against loss. It was this lien or equitable interest that the appellants mortgaged to the bank as security for money borrowed to make the said 85 per cent, payment, and it was for the *954purpose of releasing the mortgaged property from the mortgage that the appellee paid the bank the full amount of its loan. Fowler v. Parsons, 143 Mass. 401, 9 N. E. 799. In so doing the appellee did not make a voluntary payment, which cannot be recovered. The payment was made in good faith, under circumstances which justified it, and it would be gross inequity to deny the appellee’s right to recover the money so paid. 37 Cyc. 378; 25 R. C. L. 1345; Cobb v. Dyer, 69 Me. 494; Walker v. Walker, 138 Tenn. 679, 200 S. W. 825; Publishing Co. v. Barber, 165 N. C. 478, 81 S. E. 694; Building & Loan Ass’n v. Oram, 200 Mich. 485, 167 N. W. 50.
[2] The appellants contend that the appellee, by its failure to plead as a counterclaim in the replevin suit its right to recover the money so paid to the bank, is estopped by judgment to assert the claim in the present suit, and they cite cases to the proposition that, notwithstanding that an action in replevin is brought for the recovery of possession of specific personal property, a counterclaim of the defendant may be pleaded in defense.. We need not pause to inquire whether the appellee’s demand was pleadable as a counterclaim in the replevin action. We think it very clear that, wholly aside from that question, the judgment in the replevin action was not res judicata as to the present suit. The appellee’s payment to the bank' was not expressly or impliedly involved in, but was entirely independent of, the question of title or right of possession of the subject-matter of the replevin action and the issues therein, and the appellee’s demand therefor is not merged in the judgment. The case comes within the general rule that, in the absence of a statute otherwise providing, a set-off or counterclaim may or may not be pleaded at the election of the defendant, and that, unless it is pleaded, the right to sue upon it as an independent cause of action is not impaired by a judgment against the counter claimant. 24 R. C. L. 882; 34 Cyc. 758; Merchants’ Heat & L. Co. v. Clow & Sons, 204 U. S. 286, 27 Sup. Ct. 285, 51 L. Ed. 488; Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252, 30 Sup. Ct. 78, 54 L. Ed. 179; Morehouse v. Baker, 48 Mich. 335, 12 N. W. 170; Quick v. Lemon, 105 Ill. 578; Davenport v. Hubbard, 46 Vt. 200, 14 Am. Rep. 620; Roach v. Privett, 90 Ala. 391, 7 South. 808, 24 Am. St. Rep. 819.
[3] The evidence does not convince us that the trial court was in error in finding the amount of rebates due to the appellants under the agency contract to be $1,338.10. The appellants had demanded judgment in the sum of $1,900.60, but the court found from the evidence that the gross amount of the rebates was $2,325.58, upon which' $987.48 had been paid on April 11, 1916, leaving a balance of $1,338.10. That conclusion was sustained by direct testimony, which the court below credited, and we regard it as binding upon this court.
