260 S.W. 1089 | Tex. App. | 1924
The Hallett Davis Piano Company, alleged to be a partnership under the management of three named trustees, brought suit against J. D. Conley on a note for $405, dated at Throckmorton, Tex., April 20, 1921, and due four months from date, or on August 20, 1921.
The defendant answered, acknowledging the execution of the note, but further alleged:
"That since the execution of said note the plaintiff has failed to carry out certain contracts this defendant had with plaintiff, which contracts were made and entered into prior to the execution of said note, but which the defendant was depending on plaintiff carrying out, and by reason of the failure by the plaintiff in carrying out these contracts this defendant has been damaged in the following particulars, to wit: That said note was executed in payment of [a?] certain piano purchased by him from plaintiff under said contract."
He further alleged that plaintiff had sold him three other pianos and that each was defective and that he was forced to incur expenses, including the expenses of a trip to Abilene in one sale; and that the purchaser from the defendant in another sale had held back $100 of the purchase price because of the defective condition of the piano; and in a third sale, the piano was to be in a mahogany case, but that plaintiff in fact sent a walnut case, and the purchaser was unwilling to accept the walnut case and was holding back $150 of the purchase price, and that plaintiff would not exchange the piano delivered for one in a mahogany case, as requested; that defendant had lost these several amounts. Therefore he pleaded in way of reconvention or counterclaim that plaintiff take nothing and defendant have judgment for the difference between the amount named in the note and the amounts alleged to have been lost by defendant by reason of the alleged defects in two of the pianos, and the alleged error in shipping the third piano in a different case from the one ordered. He alleged further, in answer to plaintiff's claim on the note, that —
"Plaintiff entered into a regular contract with this defendant on or about the latter part of the year 1920, in which the plaintiff made this defendant their agent for the sale of pianos for all of West Texas, that the note sued on herein was executed in payment of certain pianos purchased under and by virtue of said contract, and that under this contract the plaintiff agreed to ship to this defendant one Baby Grand piano valued at $1,000, and that this defendant sold this piano to C. L. Wood for $1,000, and at that time the said C. L. Wood was amply able and willing to pay to the defendant the sum of $1,000, and that if the plaintiff had shipped this piano to this plaintiff[?] as they agreed to and as this defendant was depending on, this defendant would have realized the sum of $150.00; that plaintiff never delivered the piano, and the defendant has been damaged in the sum of $150."
The plaintiff, in replying to defendant's answer and counterclaim, leveled an exception to the pleading that the defendant was "attempting to set up as a defense an unliquidated account against a liquidated account." The trial court sustained this exception and, the defendant declining to amend, rendered judgment for plaintiff, and the defendant has appealed.
The appellant has filed a purported brief, in which he has one assignment, followed by no proper statement, unsupported by argument and unsustained by any cited authority.
Article 1329, Rev. Statutes, provides:
"If the plaintiff's cause of action be a claim for unliquidated or uncertain damages, founded on a tort or breach of covenant, the defendant shall not be permitted to set off any debt due him by the plaintiff; and, if the suit be founded on a certain demand, the *1090 defendant shall not be permitted to set off unliquidated or uncertain damages founded on a tort or breach of covenant on the part of the plaintiff."
Article 1330 further provides:
"Nothing in the preceding articles shall be so construed as to prohibit the defendant from pleading in set off any counter claim founded on a cause of action arising out of, or incident to, or connected with, the plaintiff's cause of action."
The defendant alleged in his answer:
"That all of the transactions set up herein are incident to and growing out of the same transaction as the note sued on herein; that said note was given in the regular course of trade and under the contract complained of herein. The contract between plaintiff and defendant was oral."
In an action on a note, defendant may recover damages in reconvention for the plaintiff's failure to do that for which the note was given. Brown v. Viscaya (Tex.Civ.App.)
In Collins v. Kelsey, 97 S.W. 122, the Court of Civil Appeals for the Fourth District held, where defendants, having been sued on a note, claimed in an answer filed in the nature of a cross-bill, filed after paying the note, costs and attorney's fees paid thereon, on the ground that they were ignorant of an extension of the note, whereby it was not due, that the alleged cross-bill or counterclaim was proper.
In Cunningham v. M. W. B. G. Daves,
In Gillispie v. Ambrose,
In Paschal v. Hudson,
In Bank of Gorman v. Mangum,
In Avent v. Ormand (Tex.Civ.App.)
The Austin Court of Civil Appeals held, quoting from 34 Cyc. p. 678, that defendant cannot recoup for matters not connected with the basis of plaintiff's claim, and which are founded upon an independent and distinct contract or transaction.
In McDonald v. Lastinger (Tex.Civ.App.)
In Binder v. Millikin (Tex.Civ.App.)
"It follows that appellee's claim for damages, being unliquidated, could not be pleaded in offset or for compensation against the notes, and necessarily in order to sustain it the plea must be one in reconvention. That was the only plea that he could present to the court. It is evident that appellee did not intend the plea to be one of a partial or total failure of consideration because he sought not only to cancel the notes, but to obtain a judgment for any balance on damages over against appellant. The answer was not verified as required by law. It was not objected to, however, on that ground, and the lack of verification is mentioned merely to show that it was not intended as a plea of failure of consideration."
The court cites the case of Nelson v. Traction Co.,
In the instant case defendant's answer was not verified, and although plaintiff did not except thereto for lack of verification, if the holding of the Court of Civil Appeals in Binder v. Millikin that the lack of verification might be considered as determining that the pleading was not intended as a plea of failure of consideration is sustained by the *1091 refusal of the Supreme Court of a writ of error, that holding would apply in the instant case and would preclude a reversal of the judgment below on the ground that defendant had pleaded a partial failure of consideration for the note sued on.
In Alley v. Bessemer Gas Engine Co. (Tex.Civ.App.)
There is not sufficient pleading in defendant's answer to show that the cross-action or counterclaim grew out of, or was incident to, or directly connected with, the giving of the note, upon which plaintiff's cause of action was founded.
We believe that the cause of action set up by defendant for recovery against the plaintiff was a separate and distinct cause of action from that pleaded by the plaintiff, and that the trial court did not err in sustaining the special exception to such plea.
The Judgment below is affirmed.