60 Tex. 597 | Tex. | 1884
Article 645, E. S., provides that “ whenever any suit shall be brought for the recovery of any debt due by judgment, bond, bill or otherwise, the defendant shall be permitted to plead therein any counterclaim which he may have against the plaintiff-, subject to such limitations as maybe prescribed by law.” Under an analogous provision in the statutes existing previous to the revision (art. 3443, Pasch. Dig.), it was held that the set-offs or counterclaims contemplated by the law must be mutual and due in the same right; that a joint debt cannot be set off against a separate demand, nor a separate debt against a joint one; and that this rule applies to partnership debts. See Allbright v. Aldrich, 2 Tex., 166; Hamilton v. Van Hook, 26 Tex., 302; Henderson v. Gilliam, 12 Tex., 71; Goode v. McCartney, 10 Tex., 194.
But it cannot be maintained that the defendant’s counterclaim setting up a balance due him on a pre-existing partnership with the plaintiff falls within the spirit or meaning of the rule above deduced from the decisions. In those, and in similar cases, elsewhere to be found, it is to be noticed that in all the joint claims or partnership claims which have been determined to be unavailable as defenses in set-off, there was one or more additional obligors jointly bound or liable with the plaintiff on the counterclaim thus set up as a defense.
But where, as in this case, the plaintiff, whom the defendant alleges was his partner and indebted to him as stated in the answer, is shown to have been the only partner with the defendant in the business in which they were concerned, the debt thus claimed as a counterclaim cannot properly be deemed a joint demand of any two or more persons against the plaintiff. It is the separate, independent claim of the defendant against the plaintiff, and it constitutes no objection against asserting it as a counterclaim that it is an alleged balance due on partnership transactions.
For the error in striking out the answer, we conclude that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion adopted January 25, 1884.]
