Bullard v. Berry Coal & Oil Company

The sole ground of objection asserted in Franklin’s demurrer is that the Oil Company may not assert herein its alleged cause of action against Franklin but must do so in a separate action.

Ordinarily, in respect of causes of action defined in G.S. 1-137 as permissible counterclaims, a defendant may plead his cause of action as a counterclaim in plaintiff’s action or institute a separate action thereon. But where the issues raised in the plaintiff’s action, if answered in his favor, will necessarily establish facts sufficient to defeat the defendant’s cause of action, the defendant must assert…