G., H. & S. A. R'y Co. v. Schwartz

2 Wilson 664

• Court: Court of Appeals of Texas
• Decided: June 17, 1885
• Docket: No. 3536
• Status: Published

Opinion

Opinion by

Willson, J.

§ 758. Account; claim held not to he within meaning of article %%66, Revised Statutes; case stated. Appellee sued appellant to recover for the board of laborers in appellant’s employ, and also for services rendered by him as section foreman for appellant. His claim was in the form of an account verified by affidavit, in accordance ' with article 2266 of the Revised Statutes. Appellant pleaded a counterclaim for the value of a hand-car, its property, alleged to have been negligently destroyed by appellee while in the employ of the company as section foreman. This counterclaim was stricken out on exceptions of appellee, upon the ground that appellant had not denied under oath the justice and correctness of appellee’s verified account. Appellee’s verified account \yas read in evidence on the trial, over appellant’s objections, and judgment was rendered for appellee for the full amount of his claim. Held: Appellee’s claim does not come within the meaning of an account as that term is used in article 2266 of the Revised Statutes. It is composed of several isolated transactions, resting upon special contracts. The court erred in admitting it in evidence. {Ante, §§ 51, 107.]

June 17, 1885.

§ 759. Counterclaim; defendant may plead without denying %mder oath plaintiffs verified account. Appellant’s counterclaim was well pleaded, and it was error to strike it out. Even had appellee’s suit been upon a verified account, it would have been error to strike out the plea. A defendant is entitled to plead a counterclaim without denying under oath the justness and correctness of the plaintiff’s verified account. [W. & W. Con. Rep. § 1316.]

Reversed and remanded.