Goodhue v. J. Meyers & Co.

• Decision Date: 26 January 1883
• Docket Number: Case No. 1543.
• Citation: Goodhue v. J. Meyers & Co., 58 Tex. 405 (Tex. 1883)
• Court: Texas Supreme Court
• Parties: J. B. GOODHUE v. J. MEYERS & CO.

58 Tex. 405

J. B. GOODHUE

v.J. MEYERS & CO.

Case No. 1543.

Supreme Court of Texas.

Jan. 26, 1883.

APPEAL from Jefferson. Tried below before the Hon. W. H. Ford.

The opinion states the case.

Tom J. Russell, for appellant.

O'Brien & John, for appellees.

I. The court did not err in overruling the motion for a new trial filed November 20, 1882. Dowell v. Winters, 20 Tex., 796; Foster v. Martin, 20 Tex., 122.

… III. The severe sickness of appellant and his attorney at the time judgment by default was rendered is not sufficient ground for a new trial, unless the motion shows that such sickness prevented the presentation of an equitable and meritorious defense to appellees' cause of action. Ward v. Cobb, 14 Tex., 303, 304;Foster v. Martin, 20 Tex., 122; Dowell v. Winters, 20 Tex., 796; Hatchett v. Conner, 30 Tex., 114.

IV. The offsets or counterclaims against appellees' debt, set up in appellant's motion for new trial of December 5, 1882, consist wholly of unliquidated and uncertain damages, founded upon an alleged breach of contract by appellees, and is entirely distinct and independent of appellees' cause of action, and cannot be set up in offset to appellees' certain demand. Rev. Civ. Stat., art. 649; Carothers v. Thorp, 21 Tex., 361;Duncan v. Magette, 25 Tex., 247.

V. The motion of December 5th was not accompanied by the affidavit of witnesses by whom it was expected to make proof, nor was their absence accounted for. Spillers v. Curry, 10 Tex., 143;Ward v. Cobb, 14 Tex., 303, 304.

VI. The motion disclosed no diligence in preparing the defense, or that the evidence was newly discovered. Foster v. Spear, 22 Tex., 226;Vardeman v. Edwards, 21 Tex., 740.

WEST, ASSOCIATE JUSTICE.

A judgment by default was taken on the 18th of November, 1882, by appellees against the appellant for three hundred and thirty-one 76/100 dollars ($331.76), being on an open account for goods, wares and merchandise sold to him.

On the 20th of November, 1882, appellant filed his motion to set aside this judgment, and to permit him to file an answer setting up just and meritorious defenses to the appellees' cause of action. The motion was based on two grounds: first, the serious sickness and absence from that cause of his attorney to whom he had confided the duty of filing his answer and of setting up the defenses upon which he relied to defeat appellees' recovery. His own severe illness at that time and at the time when the motion was made, he also set forth as a reason why he had been unable to move in the matter so as to avoid a judgment by default.

His second ground was, that he had a just and meritorious defense to the suit itself, and that he had fully explained to his absent attorney the nature of this defense and put him in possession of the facts on which it was based, and expected him to set that up in an answer in time to avoid a judgment by default. This defense was in substance to the following effect: That appellant, on or about the 5th of June, 1882 (this suit was filed in September, 1882), after the indebtedness sued on had accrued, entered into an agreement and contract with appellees, providing for its payment by appellant in a particular way; that at the date last mentioned the firm of Hostetter & McCoy, who were at that time also indebted to appellees, and who shortly afterwards became indebted to appellant, had on hand in the Colcasieu river a lot of railroad cross-ties, two thousand three hundred in number; that appellant purchased from them with the knowledge and consent of appellees for the sum of thirty-six cents a piece, amounting in all to the sum of $828; that by a contract and agreement then entered into between the appellant and the appellees, it was arranged and understood that appellant was to ship the ties to Houston, he having already sold them to the H. & Texas Central R. R. Co. at fifty cents per cross-tie; that at this time he made an agreement with appellees to pay over to them the amount of money that would be due to Hostetter & McCoy for the ties, on their account, and the appellees agreed to give appellant credit on his account (being the account sued on) with appellees the amount of the difference after paying to Hostetter & McCoy the amount due them by appellant on the purchase of the cross-ties, and the amount for which the cross-ties were sold to the railroad company, being at the rate of fifty cents per tie, and amounting to the sum of $1,150. But that just before the ties were delivered to the railroad company, about July 9, 1882, the appellees unlawfully took possession of said ties and sold them to other parties, and deprived appellant of the amount of profit he would have made on said sale. That the amount of profit appellant would have received and realized on said sale, which had already been made to the railroad company through their agent W. D. Cleveland, of Houston, after deducting the three cents to be paid for the timber in each tie, and two cents on each tie for the expenses of loading them on the cars, would have...