154 S.W. 243 | Tex. App. | 1913
Appellees sued appellant upon a promissory note for $1,500, signed by appellant and payable to appellees. Appellant answered by general demurrer, general denial, and specially that appellant was induced to sign the note sued upon by the false representations of appellees in reference to the state of accounts between appellant and appellees, and which were relied upon by appellant. The specific claim was made that appellees were engaged in buying and selling cotton in both the United States and Europe, while appellant was engaged in a like business in Hillsboro and surrounding country, and that during the period named in the pleading all cotton bought by appellant was in turn sold by appellees in the various local and foreign markets, under an agreement by which, after deducting all expense of selling same, appellees were to receive 60 per cent. and appellant 40 per cent. of the profits realized; the expenses being telegrams and cablegrams and the expense of reweighing and resampling any cotton sold at points in Europe. Appellant also claimed that at the time he signed the note sued on (and another for $1,000 subsequently paid), he did so under the presumption that the cotton handled by appellees for him had resulted in a loss to the amount of said notes, but that nevertheless it was not definitely known that said two notes correctly represented appellant's indebtedness to appellees or his losses, and same were executed and delivered as a tentative settlement only, and with the understanding that any excess would be refunded by appellees. Appellant then sets out certain overcharges, excess charges, and omitted credits which, he claims, he is entitled to amounting to $1,188.27, and being that much in excess of what the notes he signed should have been for, and that much in excess of what he would have signed for, had he known the condition of his account with appellees. Appellant further alleged that appellees did not fully and correctly advise him, at the time he signed said notes, of the charges accruing from time to time for handling the cotton bought by appellant, nor furnish him complete statements showing items of expense, but that he had complete confidence in and implicitly relied upon the representations of appellees that the statements as rendered were true, and so relying signed the notes sued on; and that he has never yet been furnished with complete statements of expense incurred in handling said cotton, and that he believes and charges the fact to be that such statements will show appellees indebted to him in a sum greatly in excess of the note sued on; and that he has repeatedly demanded of appellees such complete statements. Appellant further charged, in connection with the claim that the notes so executed by him were but a tentative settlements, pending the receipt of the expense incurred by appellees in selling said cotton, that he had been denied an opportunity of examining the books and papers showing a history of the said transactions; same being in the hands of appellees, who were notified to produce same for trial. The pleading concluded with the prayer that appellant "go hence without day, that said note be canceled, and that he *244 recover from the plaintiff all costs * * * incurred, and for any other and further relief to which he may show himself entitled, either in law or in equity, as in duty bound he will ever pray."
Upon a call of the case for trial the appellees, in open court, requested the trial judge to enter against them a nonsuit under the statute, which was done, and the case as a whole dismissed, over objections upon the part of the appellant properly reserved.
The only question in the case is: Did the court err in dismissing the whole case over the objection of the defendant, who contends that his answer contained a plea for affirmative relief? Every plaintiff has, of course, the statutory right to dismiss his case at any time before the jury retires. Batts, Ann.Stat. art. 1301; Rev.Stat. 1911, art. 1955. In like manner, under the provisions of the statutes cited, the defendant has the right to have the case remain upon the docket for the disposition of any claim for affirmative relief which he may seek. These rights of the respective parties under the statute have been repeatedly sustained, and a citation of authorities in that behalf is useless. Hence the question is: Did the answer of appellant present a state of facts which entitled the appellant to the affirmative relief asked in his prayer, to wit, the cancellation of the note sued upon and a judgment for costs? In strict construction the pleading may be said to be an answer; but if the facts stated as a defense are such facts as would support an independent suit for cancellation of the note we can conceive no reason why the allegations thereof in an answer, followed by appropriate prayer, would not be sufficient, under our system of pleading, to constitute a plea seeking affirmative relief. It occurs to us that it literally is a plea for affirmative relief. The relation of the facts which constitute either a defense or the ground for an independent suit would necessarily, and in the final analysis, be but a statement of the facts. It is the right of the defendant to offer the related facts as a defense or ground for initiative relief, and the manner of pleading the facts or the form the pleadings takes is immaterial. In Bradford v. Hamilton,
In the instant case the claim was, in effect, that when appellant signed the note sued upon he was induced thereto by the misrepresentations of appellees relating to the amount due, in that the note, as signed, was $1,188.27 in excess of the true amount due appellees by appellant, followed by the further claim that appellees' books would disclose further credits due appellant and further overcharges against him, which would be sufficient in amount to entirely eliminate the note sued upon, and accompanied by notice to appellees to produce its books. Upon these facts the answer prayed a hearing and, upon proof, a cancellation of the note and a judgment for costs. As indicating the trend of opinion and the tendency of our appellate courts in disposing of similar questions of pleading, it was held in Bradford v. Hamilton, supra, where the plaintiff had sued to recover lands upon after-acquired title, that, the defendant having pleaded that plaintiff's title was fraudulently obtained, and prayed for a cancellation of plaintiff's location and survey, and that the defendant be quieted in his possession, plaintiff could not take a nonsuit, so as to prevent defendant obtaining the relief sought, if it could be established. The case of Akard v. Western Mortg. Inv. Co.,
*245Reversed and remanded.