Cable Company v. Rogers

99 S.W. 736, 44 Tex. Civ. App. 620, 1907 Tex. App. LEXIS 415

• Court: Court of Appeals of Texas
• Decided: January 6, 1907
• Status: Published

Opinion

EAHSTBY, Chief Justice.

This suit was brought in the Justice Court by appellant to recover on three promissory notes, each for $35, interest and attorney’s fees, executed by appellee.

Appellee answered stating that said notes were executed in consideration for one piano of the value of $380, on which he had paid $305, in property and money. That the consideration had failed, said piano being not as represented, but totally worthless, and sought the cancellation of said notes and a recovery of the amount paid, less $10 remitted. His prayer was: “Wherefore, premises considered defendant prays that upon final hearing he have judgment against the plaintiff for the sum of one hundred dollars in money and the return of his organ and cow in the condition in which they were received by plaintiff or their value in money, which was $70 for the organ and $35 for the cow and that said three notes herein sued on be cancelled and held for naught, and for all, general, special and equitable relief, etc.”

The effect of appellee’s plea was for a rescission of the contract, which involved the sum of $380. Of this amount he sought affirmative relief for the sum of $370, being the amount of contract less the sum of $10, which he remitted. The relief sought by appellee involved an amount greater than that over which the Justice Court had jurisdiction. It was error for the justice to assume jurisdiction over the amount claimed by appellee, and the County Court should.not have entertained said plea, though not excepted to by appellant. The judgment will be reversed and cause remanded.

Reversed and remanded.