Adkins v. Sons

• Decision Date: 01 January 1871
• Citation: 35 Tex. 577
• Court: Texas Supreme Court
• Parties: G. B. ADKINS v. WARE & SONS.

35 Tex. 577

G. B. ADKINS

v.WARE & SONS.

Supreme Court of Texas.

1871.

1. A. consigned cotton to commission merchants for sale, and they advanced him over $5,000 upon the consignment. They sold the cotton at a rate which only realized some $2,400, and sued him for the excess of their advances over the proceeds of the cotton. A. alleged fraud in the sale of his cotton and reconvened for damages. On special issues the jury found the plaintiff's charges to be correct, but that they had fraudulently sold the cotton for less than its market value, and that defendant had thereby lost $2,000. The district court, in rendering judgment for the balance due the plaintiffs, applied the $2,000 as of the date of the trial, and not as of the time when the cotton was sold. Held, error; the defendant's loss was incurred when the cotton was sold, and he was entitled to have it recouped as of that date, so as to stop interest pro tanto on the plaintiffs' demand.

2. Findings of a jury upon special issues are not to be regarded in the light of a verdict; but should be treated as in chancery practice.

APPEAL from Harrison. Tried below before the Hon. J. B. Williamson.

The only question in dispute was that indicated in the first head-note. As some three years had elapsed between the sale of the cotton and the trial of the cause, the question materially affected the amount for which the plaintiffs were entitled to recover. The opinion states such of the facts as are relevant to the matter in controversy.

W. Stedman, for the appellant. The judgment is clearly erroneous, because it gives appellees' interest on $2,000 of appellant's money for more than three years. Ware reported that he had sold Adkins' cotton for $2,375.86. The jury said that he ought to have sold it for $4,375.86, and that it was by reason of Ware's fraud that it was not sold for that sum. The jury found that the balance due from Adkins to Ware, when the cotton was sold, was $941.70, instead of $2,941.70, as claimed by Ware; whereas the court gave Ware interest on $2,941.70, from the sale of the cotton to the day of the judgment; in other words, gave Ware interest on Adkins' $2,000 for over three years. The defendant's answer is in the nature of and identical with the plea of recoupment, at common law. Now, what is recoupment? It is defined to be “the keeping back and stopping something which is due.” Waterman, Set-off, 466. Recoupment is now uniformly applied when a man brings an action for a breach of contract between him and the defendant, and the latter can show that the plaintiff has violated some stipulation in the same contract, when the defendant may recoup his damages arising from the breach committed by the plaintiff, and thus the law will cut off so much of the plaintiff's claim as the cross-damages will come to. Waterman, 470. “Cut off so much of the plaintiff's claim!” Cut it off when? Why, at the time the deduction from the plaintiff's claim occurred, of course--at the date of the sale of the cotton in this case; because, if the appellees had then “cut off” the $2,000 which they fraudulently deprived the appellant of, this suit would never have been brought. See, also, opinion of Judge Cowen, in 22 Wend. 155; Waterman, 475. When the nature of a transaction necessarily constitutes an account, consisting of receipts and payments, debts and credits, the balance only is considered the debt. Waterman, 20. Here the jury found the balance of the account to be $941.70, which is the debt, and the amount to which appellees are entitled, with interest. Recoupment and set-off are of the same nature, and the ground on which set-off is admitted is, that to the extent of the discount there is a mutual extinguishment of the demands of the respective parties. Smalley v. Trammell, 11 Tex. 11. A valid set-off is an extinguishment pro tanto of the debt sued for. Younger v. Welch, 22 Tex. 428. When did the extinguishment occur in this case? At the date of the sale of the cotton, of course. These views, it is thought, entitled the appellant to have the value of his cotton deducted from appellees' demand at the date of the sale of the cotton, or at the date at which appellees' account was made up, which was thirtieth of May, 1868; and he therefore asks that the judgment be reformed and rendered for the balance of $941.70 due him at that date, and interest thereon.

James Turner, for the appellees. It is contended that this judgment is erroneous, for the reason that the damages found should have been entered at the date of the sale of the cotton.

It would seem to be a sufficient answer to this objection, that if the credit had been entered of that date, it would have been before any damage had been sustained; because it was not until events showed that the cotton would have brought a greater sum at a subsequent time, that Adkins was damaged. The very damage itself is the difference between what the cotton sold for, and what it would have sold for had it been held longer. On the very day before the verdict was rendered, the appellant amended his answer, and after enumerating his causes of complaint fixed his damage at two thousand dollars. Before that time he had claimed four thousand dollars. In the last answer he seems to have abandoned his original answer, or to have abated the amount of his damage, closing his answer in the usual form, “to the defendant's damage,” etc., and praying judgment for that sum. Now, I crave to know how the court, even if appellant's...