On Rehearing
BOND, Chief Justice.We find no merit in appellee’s contention regarding conversion of his interest in the dissolved corporation; but, even so, such would constitute an independent cause of action, and could not operate as a reduction of appellants’ claim, except by way of set off or counter-claim, avoidable under appellants’ proper plea of limitation. The rule of- law is that where the defensive matter interposed by the defendant constitutes an independent cause of action and does not go to the foundation of the plaintiff’s claim, it cannot operate as -a reduction of the demand except by way of set off or counter-claim. Where the subject matter of the defense arises or grows out of plaintiff’s demand, and is intrinsically and purely of a defensive nature and could operate only to negative the rights asserted by plaintiff to recover upon the demand, the statute of limitations does not apply. Nelson v. San Antonio Traction Co., 107 Tex. 180, 175 S.W. 434; Mason v. Peterson, Tex.Com.App., 250 S.W. 142. The record shows, without dispute, that appellee’s alleged claim for damages, growing out of appellants’ acts of conversion, is not related to appellants’ suit for contribution, or the transactions from which such contribution arose. The two causes are separate and independent actions, growing out of far-distant unrelated transactions between the parties. Appellee’s motion for rehearing is overruled.
YOUNG, J., dissents.