
    SALISBURY AND TAYLORSVILLE PLANK ROAD COMPANY v. THOMAS A. ALLISON
    Where it was agreed between the president of a plank-road company and a subscriber to the stock, that the latter might pay for a subscription previously made to the stock of the company, in work to bo doue on the road,, the company furnishing the materials wherewith to do the work; it was Held not to be a defense to an action for the recovery of the subscription, that the payment had not been made in work, because the materials bad not been furnished, according to the contract.
    This was an action of assumpsit, tried before Bailey, J., at the last Spring Term of Bowan Superior Court.
    The plaintiff declared for the non-payment of $1000, subscribed by the defendant to the capital stock of the company» The defendant’s subscription was proved. The pleas were general issue, payment and set off, and accord and satisfaetion. The defendant relied upon the following facts, as a defense against the claim : He entered into a contract with the president of the company, subsequently to his subscription; to mate one mile of the road, the president agreeing to furnish ■the plank, and the defendant engaging to do the grading and to lay down the plank. The president told the defendant, that if he made the road according to the contract, it would about pay his subscription. In pursuance of this agreement, the ■defendant graded about three quarters of a mile, and laid ■down plank for about half a mile. He did not lay down any more plank, because the plaintiff failed to furnish It. It was in evidence that the company was insolvent, and that after the commencement of this suit, the road was sold under an execution, to pay its debts.
    The Court charged thejury, that if the company agreed to receive the work which the defendant might do upon the the road, as a .payment of his subscription, they must ascertain what -it was worth, and deduct that amount from his subscription, and that the plaintiff would be entitled to recover the remainder. That the plaintiff’s failure to furnish materials, ■so as to enable him to work oni his subscription, was no defense to this action. The defendant excepted.
    Yerdict and judgment for the plaintiff. Appeal.
    
      J. E. Kerr and Jones, for the plaintiff.
    Boyden, for the defendant.
   Battle, J.

The matter which the defendant set up as a •defense to the action, could not avail him under either of his pleas. It manifestly could not be used under the general issue, nor was it a set off. It was not a payment, nor an accord and satisfaction, because the work was not completed. It may be true, that it was the fault of the plaintiff that the work was not done, and that such default may give the defendant a good cause of action against the plank road company ; but what was not done, cannot in law be considered as done, so as to amount to a payment or satisfaction.

The insolvency of the company, audits consequent inability to pay the damages which the defendant might recover against it for a breach of its contract, cannot, in a court of law, make-any difference, and it is no part of our duty to decide now, whether any other tribunal can give relief. The charge of' his Honor, in the Court below, was entirely correct, and the judgment must be affirmed.

Pee Cueiam, Judgment affirmed-  