89 W. Va. 66 | W. Va. | 1921
In an action of assumpsit for the 'value of goods sold, the defendants sought by plea to off-set two counter claims for damages for alleged breaches of plaintiff’s contracts to sell and deliver to defendants at prices stipulated in the contracts certain other goods which, because of such breaches, they had been obliged to purchase in the market at higher prices, whereby they were damaged to an amount largely in excess of plaintiff’s demand against them. It is not alleged in the plea that these counter claims arose out of the samel transaction on which plaintiff sued, nor that plaintiff is insolvent, but the sole ground for equitable relief is that plaintiff is a nonresident corporation and that, for that reason, service of process can not be had upon it in this state.
The question certified is whether the plea presents a good defense of set-off to plaintiff’s demand. The circuit court ruled that it did not, and struck out the plea.
We think the court was clearly right. Defendants’ counsel concede it to be well settled in this state and everywhere in general, unless a different rule has been established by statute, that a defendant in an action at law can not have set-off against the plaintiff’s demand a claim for unliqui-dated damages arising out of a different transaction than that sued on. Our decisions on this proposition are numerous. Clark’s Cove Guano Co. v. Appling, 33 W. Va. 470; Case Mfg. Co. v. Sweeny, 47 W. Va. 638; Ashland Coal & Coke Co. v. Hull Coal & Coke Corp., 67 W. Va. 503; Dodge v. Brown, 74 W. Va. 466; J. C. Orrick & Sons Co. v. Dawson, 67 W. Va. 403; Cook Pottery Co. v. Parker, 86 W. Va. 580; Fairbanks v. Breckenridge, 84 W. Va. 233.
But does the fact alleged, that the plaintiff is a non-resident, and service in this state can not be executed upon it, give ground for relief, as defendants aver? Defendants’ counsel contend that this fact constitutes good ground for equitable relief, aside from the ground of insolvency or any other equitable ground. The only authorities offered for this contention are Ewing-Merkle Elect. Co. v. Lewisville Light & Water Co., 92 Ark. 594, 30 L. R. A. (N. S.) 21; and a note to L. R. A. 1918B, p. 425. In Arkansas the same form of action applies to both law and equity eases. There the defendant interposed a cross-bill, alleging the non-residence of plaintiff as ground for relief in equity, and the defense was sustained. As the note in that case, 30 L. R. A. (N. S.) p. 21, will show, the authorities are in conflict as to whether non-residence of the plaintiff is a good ground for equitable relief. "We need not go into this question, for we are in a court of law, and in no case cited or examined have we found that such equitable rights have been enforced in an action at law.
We affirm the ruling of the circuit court.
Affirmed.