D. June & Co. v. Brubaker

24 S.W. 79, 5 Tex. Civ. App. 79, 1893 Tex. App. LEXIS 546

• Court: Court of Appeals of Texas
• Decided: November 29, 1893
• Docket: No. 856.
• Status: Published

Opinion

STEPHENS, Associate Justice.

The counter-claim was not unliquidated, and hence could be pleaded in offset by appellees to the notes sued on by appellant. They claimed commissions at a specified rate, agreed upon for the sale of certain machinery of a specified • price and value. The failure of appellant to fill the order and consummate the trade made by its agents rendered it liable for the commissions. Jones & Co. v. Hunt, 74 Texas, 657.

The statute of limitations, however, was a bar to the counter-claim, unless avoided by pleading and proof. The proof tended to show that it came within the exception of accounts between a merchant and his factor or agent, but no reply was made to the limitation plea. Such matter in avoidance must be alleged, the same as coverture or other disability. Ang. on Lim., sec. 292.

For this error, the judgment must be reversed and‘the cause remanded.

Reversed and remanded.