Duncan v. Magette

• Decision Date: 01 January 1860
• Citation: 25 Tex. 245
• Parties: JOHN DUNCAN v. J. J. MAGETTE.
• Court: Texas Supreme Court

25 Tex. 245

JOHN DUNCAN

v.J. J. MAGETTE.

Supreme Court of Texas.

1860.

An action for a certain sum of money paid to the defendant at his request, to be returned on request with lawful interest, is not supported by evidence that the plaintiff made a special deposit of the amount with the defendant to keep for him.

See the opinion for remarks as to the legal effect of a general deposit in a bank, or special deposit with one not engaged in the business of money dealing, for safe-keeping.

A demand is necessary to be made for money specially deposited for safe-keeping before suit is brought. 9 Tex. 151.

If the allegations of the plaintiff's petition are put in issue by one of the defendant's pleas, the plaintiff cannot give in evidence the allegations of another of the defendant's pleas in order to maintain his cause of action.

That the plaintiff is insolvent, does not constitute a qualification or exception to the clause in the statute concerning discount and set-off, which provides that, “if the suit be founded on a certain demand, the defendant shall not be permitted to set off unliquidated or uncertain damages, founded on a tort or breach of covenant on the part of plaintiff.” 7 Tex. 551.

A court of equity will not grant such a remedy, by extending it to a case positively prohibited by the law; though it will do so by virtue of its inherent power, in the advancement of the spirit of the law, in cases of mutual demands which cannot be set off under the statute, in cases of insolvency of the plaintiff. 1 Tex. 28.

REHEARING.

The word “debt,” in the statute referred to, is used, in a general sense, to denote any sort of promise or obligation to pay money, such as open accounts, notes, bills, bonds, judgments, and the like. The word “discount,” it is presumed, was also used in its most general sense, which embraces both “a defalcation in an action,” and a “set-off.”

The term “certain demand,” used in the fifth section, has the same meaning as the word “debt,” as it is used in that and other sections of the act.

The doctrine of reconvention permits exceptions to the rule prescribed in the fifth section of the act concerning discount and set-off, and limits their application to matters necessarily connected with the main action, and incident to the same. These limitations cannot be abandoned without producing inextricable confusion. 5 Tex. 58, 208, 506;6 Tex. 415.

See the opinion for the views of Mr. Justice Roberts as to what influence on judicial action is due to a sense of justice, as contra-distinguished from law. The relations of abstract justice and law considered.

APPEAL from Matagorda. Tried below before the Hon. James H. Bell.

This was a suit brought on the 28th day of March, 1857, by John J. Magette against John Duncan, for the sum of $730, with interest thereon from the 1st day of March, 1856, the date of the alleged promise. The defendant demurred to the petition, and answered to the facts by a general denial, and pleaded that the plaintiff, on the 9th day of August, 1856, whilst acting as his overseer, wantonly, and without lawful excuse, killed a certain slave of the defendant, of the value of $1,500, “which he pleads in reconvention,” and prayed for judgment for the same. The answer stated that after the unlawful killing aforesaid, the defendant refused to pay to the plaintiff any sums of money received or held by him, the same being far less in amount than the value of said negro. The defendant excepted to the sufficiency of this plea, which was sustained. The court refused the charge asked by the defendant set forth in the opinion, and also refused to give the following, also asked by the defendant, viz.: “If the jury believe from the evidence, that a special deposit was made with defendant by plaintiff, of the amount in controversy, for safe-keeping, and not as a loan, that plaintiff cannot recover unless a demand on defendant for the delivery and return of the same before suit brought, has been proved by plaintiff.” On the trial, the plaintiff offered to read from the answer of the defendant which set up damages from the loss of the negro, to prove a demand and refusal, etc. To which the defendant objected, because he had put in issue, by a general denial, all the allegations of the petition. The objection was overruled, and the plaintiff read in evidence the following portion of the answer: “This defendant refused, as well he might, to pay over to said plaintiff any sums of money received or held for him.” The court instructed the jury that “if the plaintiff placed the sum of money claimed in his petition in the defendant's hands, and it has not been paid back to the plaintiff, the plaintiff is entitled to recover it in this suit.”

Verdict for the plaintiff for $730, and judgment was rendered accordingly, with interest from the date of the judgment. The other facts appear from the opinion.

Ballinger & Jack, for the appellant.

G. Quinan, for the appellee.

ROBERTS, J.

The allegation of the petition, upon which a recovery is sought, is, “the plaintiff paid to the defendant the sum of seven hundred and thirty dollars at his request, which sum of money the defendant promised to return to plaintiff whenever thereafter requested, with lawful interest on the same.” There could be no doubt about what was meant by this averment, but for the word “paid” being used in it. Its use might imply that there was an antecedent debt, or, had the transaction been between merchants, that it was treated as a charge in mutual running accounts. The balance of the averment, however, shows that it was not a payment literally, but a loan of money to be returned with interest on demand.

The proof in support of it was an admission by both parties that “plaintiff had deposited with defendant to keep for him $730 in Alabama money.”

This evidence was objected to by defendant below, because it proved facts different from those alleged in the petition, which objection was overruled by the court.

For the purpose of raising the same question in another way, the defendant asked the court to charge the jury that “if the jury believe from the evidence that the plaintiff made a special deposit with the defendant, of the nominal amount of $730 in Alabama bank bills, and that there is no other proof of any indebtedness or receipt of money from defendant to plaintiff, the evidence does not sustain the cause of action, and the jury must find for defendant.”

We think the court erred in this ruling. For if the jury should have been satisfied that it was a special deposit for safe-keeping, as the proof seemed to indicate, then the allegation of the petition of a loan on interest was not met by the proof.

A general deposit of money in a bank creates an indebtedness on the part of the bank, and a liability to pay back the money without interest. The object of the depositor is the safe-keeping of the money; and the consideration upon which it is received by the bank is, that it may be used until needed. It loses its character of bailment and becomes a loan. Edwards, Bail. 66. The bank is liable for the money absolutely, however it may have been lost. And this is the ordinary mode of safe-keeping by a bank. The case, however, is different with a special deposit in a bank. Com. Bank of Albany v. Hughes, 17 Wend. 100. There the thing deposited is expected to be kept and redelivered.

So, as matter of fact, a deposit of money, made with a farmer, or any one not engaged in the business of money dealing, for safe-keeping, would usually be a special deposit, and the party receiving it would not be liable for its loss, unless he were guilty of gross negligence. Edwards, Bail. 67; Parsons, Con. 572.

In this case the evidence shows the deposit was made by the overseer with his employer; that it was made for safekeeping, to be redelivered on request. Such facts, unexplained, would show it to have been a special deposit; and if the identical Alabama money had been lost while it remained with Duncan, it would have been Magette's loss, unless Duncan had been guilty of gross negligence in keeping it. As they may have been explained by other proof to have a different meaning, it was perhaps not error in the court to admit them in evidence; but certainly the jury should have been permitted to determine whether or not the facts showed that it was a special deposit. If they had believed it so to be, they must have found against plaintiff; for a special deposit would not correspond with the allegations in the petition, of a loan upon interest.

Another question in the case is, admitting it to have been a special deposit for safe-keeping, was a demand necessary before bringing suit? We think so. Until demand made, it was not Duncan's duty to redeliver; and he can not be in default until it is so made his duty. This question is incidentally discussed and this rule deduced, after considerable research, in the case of Mitchell v. McLemore, 9 Tex. 151.

Another point decided in the case was, that it was proper to permit the plaintiff to give in evidence, the allegations of one plea to maintain plaintiff's cause of action put in issue by another plea. This would make one plea destroy another, and virtually abolish all double and inconsistent pleading. Our statute authorizes the defendant to plead as many several pleas as may suit his own convenience. The action of the court in admitting the plea to be read as evidence was error. Hart. Dig. art. 688; authorities, English and American, collected in Hill & Cowen's Notes to Phil. Ev. vol. 1, pp. 609, 610.

The defendant pleaded as an equitable offset, that Magette being his overseer, without any just cause, killed one of his (defendant's) slaves of the value of fifteen hundred dollars; and that said Magette was a transient person, and had no visible means, within the knowledge and belief of the plaintiff, sufficient to satisfy the said damage done to the plaintiff by said tort.

This is hardly a sufficient...