Crook v. McGreal

• Decision Date: 31 December 1848
• Citation: 3 Tex. 487
• Parties: WILLIAM T. CROOK AND JOHN ADRIANCE, Plaintiffs in Error, v. HUGH MCGREAL et al., Defendants in Error
• Court: Texas Supreme Court

3 Tex. 487

WILLIAM T. CROOK AND JOHN ADRIANCE, Plaintiffs in Error,

v.HUGH MCGREAL et al., Defendants in Error

Supreme Court of Texas.

December Term, 1848.

Writ of Error from Brazoria County.

After a suit has commenced, matters may occur to prevent the plaintiff's proceeding to judgment; but, in general, a good defense to the action must exist at the time suit is commenced.

If the subject matter of a set-off is not barred at the commencement of the suit, and was then a debt due the defendant from the plaintiff, it will be good, although it may be barred at the time the answer is filed.

To authorize a judgment giving interest, the petition should show the debt to be such as, under the statute, carries interest. [1 Tex. 105;21 Tex. 635.]

An error, apparent on the record, may be revised and corrected, though not presented by a bill of exceptions or statement of facts.

This was a suit brought by Hugh McGreal for the use of the other defendants in error.

The petition represents that one Leah Alsbury, at the instance and request of said McGreal, executed to John Adriance a deed of five hundred and fifty acres of land, the property of the plaintiff, which is particularly described; that William T. Crook promised and agreed to pay him the sum of two thousand dollars for the land; that the deed was executed to Adriance in trust for Crook, at the request of Crook; that the consideration was unpaid, though its receipt was acknowledged by the deed; that he is advised he has an equitable lien on the land for the purchase money. It prays, among other things, that Crook be condemned to pay the debt, interest and costs; that the land be attached and sold, and that Adriance be ordered to release to the purchaser.

The defendant, Adriance, filed a general denial. The defendant, Crook, did the same, and claimed from the plaintiff, McGreal, a large amount alleged to be due upon certain promissory notes, etc., set forth in his answer.

A verdict and judgment was rendered in favor of the plaintiff for the amount claimed, with interest from the date of the deed. Upon which the defendant sued out this writ of error.

ROBINSON and CRITTENDEN for plaintiffs in error.

HARRIS for defendants in error.

Mr. Justice LIPSCOMB delivered the opinion of the court.

The plaintiffs in error have assigned a great many errors, on which they ask the reversal of the judgment of the court below. We consider, however, but two of them to be very material, and shall therefore confine our attention to them. It is to the 3d and 5th assignments of error. The first of them is to the third charge asked by the defendants in error, who were the plaintiffs in the court below, and given by the judge. It is as follows, i. e.: “That if the jury believe from the evidence that the notes offered in evidence by the defendant, as set off, were barred by limitation, at the time of the answer filed, they are to be rejected.” This charge was given. The other error we will notice by and by. The correctness of the above charge will be inquired into. This question is not exactly new to the court. It is, to some extent, embraced by the case of Hall vs. Hodges, decided at our last term. In that case there were open accounts between the parties. The court ruled, “that although it could not be considered an account current between merchant and merchant, as embraced in the exception in the statute of limitations, yet it may be considered between the parties as an account current; and in such cases it is universally considered that one account is to balance and extinguish the other, as far as it goes. At common law, one could be given in evidence under the plea of non-assumpsit, in an action of assumpsit brought on the other.”

It is on the principle that one is considered an extinguishment of the other, pro tanto. If this is a correct rule, then at the date of the accrual of the plaintiff's account, the defendant's account, if not barred then by the statute, would be applied to the extinguishment of the plaintiff's debt, and in this way plaintiff's account to that extent be extinguished before the bar had interposed. There is nothing in our statute of set-off that would restrain or forbid this construction of the effect of mutual debts, to extinguish each other, where there has been a running account. And the rule at common law seems, in such cases, to have assimilated to the civil law of compensation. By the civil law, the latter takes place in such cases, of course, by the mere operation of the law, even unknown to the debtors. The two debts are reciprocally extinguished as soon as they simultaneously exist. [Bouv. Tit. Compensation.]

The impossibility of extending the analogy to negotiable notes is manifest, as it would entirely destroy its negotiability, because it could not be known through what hands it had passed. The question before us, it is believed, can be settled on safer grounds, perfectly consistent with the policy of sustaining negotiable paper. It is a well settled rule of practice, that a defense must be a good defense at the commencement of the suit. After a suit has commenced, matters may occur to prevent the plaintiff's proceeding to judgment; but, in general, a good defense to the action must...