Allen v. Herrick Hardware Co.

• Decision Date: 14 April 1909
• Citation: 118 S.W. 1157
• Parties: ALLEN v. HERRICK HARDWARE CO.
• Court: Texas Court of Appeals

118 S.W. 1157

ALLEN v. HERRICK HARDWARE CO.

Court of Civil Appeals of Texas.

April 14, 1909.

Rehearing Denied May 12, 1909.

Error from District Court, Harris County; W. P. Hamblen, Judge.

Action by the Herrick Hardware Company against A. C. Allen. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Masterson, Atkinson & Masterson, for plaintiff in error. Baker, Botts, Parker & Garwood, for defendant in error.

FLY, J.

This is a suit on a promissory note for $3,640.20, together with interest and attorney's fees, instituted by defendant in error against plaintiff in error, who answered that the note was given under a verbal agreement that there should be an accounting between the maker and payee on a later date, and if the note did not represent the true balance between them, or if the note was in excess of the indebtedness of the maker, the latter should have credit for the excess; that the amount was in excess of what the maker owed in the sum of $1,500. Plaintiff in error also pleaded in offset an account for $845 for guns, pistols, wagons, and "sundry articles," and asked that the $1,500 excess and $845 account be deducted from the amount of the note. Plaintiff in error also pleaded that he was not liable for $400 claimed in the suit.

It was alleged in the answer that the note was given for implements, harness, cutlery, mules, and other things, and further alleged: "That on the day said note was given J. W. Orand, who, as plaintiff is informed and believed, if not the largest, is one of the largest, owners of the said Herrick Hardware Company, came to Houston with a purported statement of this defendant's account with said Herrick Hardware Company for business done by him with them at Whitney, Morgan, and Blum, Tex., said account being very long, and consisting of many items the correctness of which could only have been ascertained by a long and thorough audit of same, by comparison with orders given by this defendant to said hardware company. That all the said machinery, implements, and other articles bought by this defendant from said hardware company were bought for, and used upon, the ranch and farm of said defendant and his mother, situated in Bosque county, Tex., and at said ranch and farm were all the papers, account slips, and all statements sent by the Herrick Hardware Company to this defendant, growing out of orders given and purporting to show how the orders were filled, and without which it was impossible for this defendant to know, with any degree of certainty, the correctness or incorrectness of the account as presented. That when said purported account was presented to this defendant with the request that he give to the Herrick Hardware Company a note for the amount of said account, this defendant stated to said Orand, who has charge of the Morgan house of said hardware company, that this defendant had no means of testing the accuracy of the account, because all papers pertaining to the same were at his farm and ranch in Bosque county, Tex., and further made known to said Orand that there were certain credits due this defendant for merchandise bought by the Herrick Hardware Company of this defendant, consisting of certain guns, pistols, rifles, and other articles, for which there appeared to be no credit on the account, but said Orand insisted that these matters could all be adjusted hereafter, that personally he knew nothing about these matters, as they occurred with the Whitney house, and that the Herrick Hardware Company and this defendant had done business together for a great many years, and that said hardware company was in very straightened circumstances, and had been able to collect but a very small per cent. of what was owing it, and that it was in a position where its doors could be closed by its creditors unless it get immediate help, and that, as defendant's was one of the largest, if not the largest, account they had out, if they could get a note for the amount, it would put it in a position to do something to protect itself from harsh action by creditors, said Orand stating that, if the defendant would give him said note, it would probably aid said hardware company very materially in being able to resist the pressure that was being brought to bear on it by persons to whom it was indebted, and that it was not a question of months or weeks, but a question of days in which it must have help or suffer the consequences, and asked defendant to sign said note, and take up the matter of adjustment of the difference between them, and promised in behalf of said company they would do so later on, saying that as those transactions...