Browning v. Hart & Co. , 29 Tex. 271 ( 1867 )

Willie, J.

This suit was instituted in the court below by Hart & Co. against W. A. Browning, on a promissory note for $120 60. The defendant plead, among other things, that the court ought not to take jurisdiction of the suit, because the note was given in settlement of an open account between defendant and Hart & Co.; that at the time the note was executed he (defendant) insisted that he had paid the first item of the account, amounting to $39 29, and had a receipt therefor; that S. B. Sheegog, the agent of Hart & Co., promised that if defendant had such receipt the amount should be entered as a credit on the note; that subsequent to the execution of the note defendant sent the receipt with the money for the true amount due plaintiffs on said note to said agent, but the same was not accepted and the matter adjusted by said agent. He also plead that he was entitled to a credit upon said note for the said sum of $39 29, and made the open. account and receipt a part of his answer. The facts proved on the trial were substantially as stated in defendant’s pleas above set forth, with these in addition, that when the receipt and money were sent by defendants to Sheegog, they were returned, because Sheegog had ceased to be agent for Hart & Co., and that the receipt was never shown to Hart & Co., or any other agent of theirs. The court charged the jury to find for the plaintiff the amount of the note, with interest, less the amount of $39 29, and the verdict was in accordance with the charge. Judgment was rendered against defendant for the sum of $100 85 and costs of suit. The defendant moved the court to set aside the judgment so far as the costs were adjudged against him, for the reason that the plaintiff’s claim was reduced by payment to an amount not within the jurisdiction of the court.

This motion was overruled, and the defendant brings the case by writ of error to this court. He insists that the court erred in not dismissing the case for want of jurisdiction, and also in adjudging the costs against the plaintiff below.

Our statute in reference to discounts and set-offs provides, that where the claim of the plaintiff is reduced to a sum not within the jurisdiction of the court by payment, then judgment shall be given in favor of the plaintiff for the balance due, but the defendant shall recover the costs of the suit. The claim of the plaintiffs in the case now under consideration was the promissory note upon which the suit is brought. The payment plead by defendant was not made upon this note, nor was it intended as a reduction of the same. It was made long previous to the execution of the note, and formed an equitable claim on the part of defendant to have the amount of the note reduced. If the open account between plaintiffs and defendant had never been closed by note, and had suit been instituted upon that account, then the claim would have been reduced by payment in such manner as to have required the court to adjudge the costs against the plaintiffs. But as the payment was made upon the account which formed the consideration of the note, the defense was in the nature of a want of consideration for the note so far as the $39 29 was concerned, and not of a payment made upon it of the character contemplated by the statute. We are of opinion that the court had jurisdiction of the suit, and that judgment for costs was properly rendered against defendant. The judgment is

Aeeibmed.