Schwartz v. B. C. Evans Co. ( 1889 )

ACKER, Presiding Judge.

Suit by the B. C. Evans Company against Henry Schwartz on several promissory notes, aggregating over a thousand dollars, all dated June 25, 1884.

Defendant answered, interposing several defenses, and specially pleaded “that in ¡November, 1885, plaintiff claimed to have and hold a balance of indebtedness against defendant by reason of the notes sued on, and for merchandise sold to defendant, of about five hundred dollars; that defen dan t claimed that the amount he owed plaintiff on said matters was a sum much less than five hundred dollars; that for the purpose of settling said dispute and controversy, on the said date it was mutually agreed by and between plaintiff and defendant; that defendant should pay plaintiff two hundred and fifty dollars, which sum should constitute and be a payment in full of all demands, including all claims by reason of any balance on the notes here sued on; and that afterwards, in pursuance of said agreement, and in part payment of said two hundred and fifty dollars, defendant paid and delivered to plaintiff a fine gold watch, at and for the agreed price of one hundred and twenty-five dollars, which was by plaintiff taken and accepted in pursuance of said agreement, and that defendant after-wards tendered to plaintiff one hundred and twenty-five _ dollars and interest thereon from the date of said settlement, but plaintiff refused to receive the same.”

Plaintiff presented a general demurrer to this special plea, which was sustained, and there was verdict and judgment for six hundred and thirty - five dollars, from which defendant appealed.

The transcript contains no statement of facts, and there is no appearanee here for appellee.

«The only assignment of error is that the court erred in sustaining the general demurrer to the special plea. The demurrer admits the truth of the matters stated in the plea, and in passing upon the sufficiency of the plea, as against a general demurrer, every reasonable intendment arising upon the averments of the plea will be indulged in favor of its sufficiency. The question raised by the demurrer is whether the plea discloses a defense to the case made by the petition. If it does it must be held sufficient,- although it may appear defective in the manner in which the defense is stated. Rule 17; Prewitt v. Farris, 5 Texas, 376; Robertson v. Davenport, 40 Texas, 341.

The plea does not state with certainty the time of the alleged part performance and tender of performance of the balance of the contract of settlement by defendant, but it does not appear from the plea that time was of the essence of the contract.

We think the plea set up a good defense and was sufficient as against the general demurrer.

We are therefore of opinion that the judgment of the District Court should be reversed and the cause remanded.

Reversed and remanded.

Adopted November 26, 1889.