Hall v. Hodge , 2 Tex. 324 ( 1847 )

Mr. Justice Lipscoicb

delivered the opinion of the court.

The appellant filed his petition on the 26th of November, 1844, against the appellee, to recover the amount of an open account appended to his petition. The defendant pleaded, denying the plaintiff’s account, set-off, and payment, and filed his •account against the plaintiff. A greater part of the items composing defendant’s account would have been barred by the ¡statute of limitations had he sued for them, but were not barred at the date of the accrual of the plaintiff’s account. 'The plaintiff set up the objection of the statute to the defendant’s account.

From the evidence embraced in the statement of the facts sent up by the presiding judge, there seems to have been •much contradictory testimony in establishing the account of the defendant. There was a verdict for the defendant fornine'teen dollars and fifty cents, for which amount the court rendered judgment. The plaintiff entered a motion- for a new trial, assigning several grounds; among others, that the ver-dict was contrary to evidence. The motion was overruled, -and the plaintiff appealed. Several objections to the judgment of the court below have been presented by the appellant. •It is believed, however, the most material are, first: Was the -verdict contrary to evidence? Second, should the account of the defendant, under the circumstances, have been ruled out, ■under the operation of the statute of limitations?

As to the first, it will be seen, by a reference to the statement of facts, there was much contradictory testimony. There was evidence in favor of and adverse to the correctness of the .-account relied upon by the defendant, and presented a clear •case for the peculiar province of the jury to weigh the evidence •and give the preponderance to the conviction of their own minds. In cases of contradictory evidence, and the witnesses •on both sides standing unimpeached, this is the only rule ‘known to reason or to the law for determining the controversy; -andalthough it may not be satisfactory to the judge, it must be submitted to and should never of itself constitute sufficient •ground for disturbing the verdict. It cannot with any propriety in such cases be said that the verdict would be contrary "to evidence, whether the jury gave the most weight to one or the •other side. We can, therefore, perceive no error in the refusal to grant a new trial.

As to the second ground. It will be found, on looking into (the evidence, that at the time of the accrual of the account of the plaintiff on which he instituted his suit, the account of the defendant offered as a set-off was not barred by the-lapse of two years, the time prescribed by the 1st section of the statute of limitations for open accounts; and although not an account between merchant' and merchant, it may be considered between the parties as an account current; and in such eases it is universally considered that one account is to balance or 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 othei’.

If this is a correct rule, then at the date of the accrual of the plaintiff’s account, the defendant’s account, if not then, barred by the statute, would be applied to the extinguishment of. the plaintiff’s debt, and in this way the plaintiff’s account would, to that extent, be extinguished before the bar had-interposed.

This is believed to be a fair exposition of the law, where there are mutual outstanding, open accounts. The only authority against this construction will be found to arise from enforcing a technical distinction between the plea of set-off and the evidence of payments that could be given in evidence-under non-assumpsit at common law. Our plea of off-sets-under the statute is not believed to have been intended to, nor does it in its terms, change the rule. The 2d section of the-act allowing discounts and set-offs, Acts 4th Congress, p. 62,. enacts, “ That in every action in which a defendant shall desire to prove any payment on set-off, he shall file with his plea, an account, stating distinctly the nature of such payment or set-off and the several- items thereof, and on failure to do so-he shall not be entitled to prove before the jury such payment or set-off, unless the same be so plainly and particularly described in the plea as to give the plaintiff full notice of the-character thereof.” We see nothing that would restrain the rule that one open account should be considered as balancing the other, in the statute directing the mode in which it should be pleaded. If the defendant’s account had been barred before the accrual of the plaintiff’s, the presumption of one balancing the other could not arise. This not being the fact in the ease at bar, it is the opinion of this court the statute-did not bar it when offered in evidence.

In the case under consideration the jury returned a verdict for the defendant, to the amount of the excess of his account, over the plaintiff’s account, nineteen dollars and fifty cents, and the judgment was rendered in his favor for that amount, together with all costs. So much of the judgment as gave the-defendant costs is believed to be wrong, and not sustained by the law. In the 4th section of the statute before referred to will be found this provision: “Should the set-off of the defendant exceed the amount established by the pl&intiff, then judgment shall be given in favor of the defendant for the amount that his claim may exceed that of the plaintiff; but the plaintiff shall recover the costs of the suit.” The judgment in the case before us is in contravention of this statutory provision.

It must, therefore, be reversed and rendered in this court according to the law just cited.