Carothers v. Thorp, 21 Tex. 358

Carothers v. Thorp

21 Tex. 358 | Tex. | 1858

Wheeler, J.

The limit which the decisions of this Court have assigned to the right to plead in recenvention in our practice is, that the matter pleaded, or the damages claimed, must have grown out of, or be in some way connected with or incidental to the main action. (Egery v. Power, 5 Tex. R.. 501; Walcott v. Hendrick, 6 Id. 406 ; Cannon v. Hemphill, 7 Id. 184.)

The notes sued on and mentioned in the answer evidence-several contracts. It is not averred that they are parts of one and the same agreement; nor does it appear by the answer, that they had any necessary connexion or dependency. If not; if they were several and independent contracts, the-*362breach of one could not affect the rights of the parties under the others. Damages arising from the breach of one could not be pleaded in reconvention to the action upon the others, because not connected with or incidental to the main action. The answer was excepted to on that ground ; and we think the exception well taken. If in point of fact the several notes were parts of the same agreement, the defendant should have so amended his answer, when it was specially excepted to because it did not so appear, by stating distinctly the facts showing the connexion of the breach of contract with the cause of action. The answer did not set up any equitable matter of defence to bring the case within the decisions which have admitted such defences, (Castro v. Gentilly, 11 Tex. R. 28,) and we are of opinion the Court did not err in sustaining the exceptions. The judgment is affirmed.

Judgment affirmed.