Dizon v. Watson , 52 Tex. Civ. App. 412 ( 1908 )

Appellant, who was plaintiff below, sued appellee for the recovery of the sum of $2,426.82 as damages for the alleged breach of a lease contract. It appears from the evidence that in December, 1902, appellant rented from appellee 450 acres of land in Hays County, for a period of time extending from December 16, 1902, to December 15, 1903, 150 acres of which was tillable land and the balance hay land, agreeing to pay appellee as rent therefor one-fourth of the cotton and cotton seed grown upon said 150 acres, and $3.50 per acre for all of said 150 acres planted in other crops than cotton; that as to said grass land it was stipulated that the same was to be prepared by plaintiff, the hay harvested therefrom in season and baled, all of which was to be done at plaintiff's expense, and that, after harvesting, the hay saved was to be graded into first, second and third-class lots, both as to Johnson grass and prairie hay, the classes of which were set out and designated in said contract, which appellant obligated himself to sell and deliver to appellee at certain specified prices for each class. There was also a stipulation in said contract whereby appellant bound himself to properly cultivate said land and to plow and kill out certain patches of Johnson grass upon said tillable tract.

The appellant, in accordance with said contract, took possession of said premises, and during said time raised a crop of corn and cotton on said 150 acres, and prepared said grass land and harvested crops of hay therefrom, paying to appellee at various times during the fall of 1903 the rents from said 150 acres and delivering certain portions of the hay so harvested from the 300 acres.

On January 14, 1904, while a large part of the hay crop was in ricks on the premises and still undelivered, and a certain part thereof stored in appellee's warehouse at Buda, a nearby station, for shipment, appellee brought a suit against appellant and others in the County Court of Travis County, based on said contract, in which appellee sought to recover the sum of $1,228.55, on account less admitted credits, bringing balance within the jurisdiction of said court, all of which was alleged to be for supplies and advances furnished appellant by appellee to enable him to make said crop, except an item of $140, alleged to be due for rent of corn land, but which account was credited by appellee with $616.85, being the cash value of certain hay admitted to have been delivered by appellant prior to the filing of said suit. Appellee likewise at the same time sued out in said cause a writ of sequestration, which was levied by the officer upon said hay at Buda and on the premises as aforesaid, all of which was subsequently sold out under orders of the court.

Appellant answered in said suit, setting up that the matters and things in controversy amounted to more than $1,000, and was in excess of the jurisdiction of the County Court, praying to be dismissed therefrom on said account. Said plea to the jurisdiction was overruled and the other parties defendant dismissed, and on the trial appellee, who was plaintiff in the County Court suit, recovered judgment against appellant for the sum of $657.51, which judgment was thereafter duly credited with the amounts received from the sales of hay levied upon under said writ of sequestration. Said County Court judgment is shown to have been final.

Appellant, after the termination of said County Court suit, and on to wit, the 19th day of November, 1906, filed this suit in the District Court of Travis County against appellee, basing his right to recover upon said contract, alleging a compliance therewith on his part and a breach thereof on the part of appellee, claiming that he was entitled, by reason of said contract at the time that said County Court suit was filed, to continue to deliver the hay then on hand to appellee, and to receive therefor the stipulated price, the amount so sought to be recovered as damages for said breach being $2,426.82.

Appellee, besides a general demurrer and general denial, plead res adjudicata and certain offsets arising from the alleged breaches of said contract on the part of appellant relative to a failure to destroy the Johnson grass.

To this answer appellant demurred generally and specially, and answered by general denial and special plea, in effect that, if any of the items sued upon had been adjudicated, only a portion, naming such portion, was so adjudicated and further pleading res adjudicata to the counterclaim and limitation as to some of the items thereof.

All demurrers and exceptions of both parties were overruled, and there was a jury trial. At the completion of the evidence the court held that plaintiff's entire cause of action was subject to defendant's plea of res adjudicata, and thereupon instructed the jury to return a verdict for appellee, which was accordingly done, from which this appeal is prosecuted.

Appellant by his first assignment of error complains of the action of the court in peremptorily instructing the jury to return a verdict for appellee, insisting by his proposition thereunder that the matters adjudicated in the County Court suit were not res adjudicata as to the controversy involved in the present suit. It will be recalled that appellant, who was defendant in the County Court suit, did not plead the matters involved in the present suit in offset or reconvention, but only plead the same to the extent and for the purpose of defeating the jurisdiction of the County Court; and on the trial in the County Court, at the instance of appellee, the jury were instructed that as defendant, meaning appellant, had not plead the value of the hay upon the premises and at Buda in setoff to the plaintiff's demand, that the same could not be considered by the jury for any purpose, and to disregard the same. We do not believe that appellant was bound in the County Court to have asserted his plea in reconvention or setoff, but had the right to decline to do so. He could not in that case, it appears from the evidence, have plead the same in reconvention, for the reason that the amount involved was in excess of the jurisdiction of the court. It is held that a counterclaim or plea in reconvention is, in effect, a suit against the plaintiff, and that where the amount of such counterclaim or plea in reconvention exceeds the jurisdiction of the court in which the suit is pending, such court is without jurisdiction to hear or determine the same. (Gimbel v. Gomprecht, 89 Tex. 497; Pennybacker v. Hazlewood, 26 Texas Civ. App. 183[26 Tex. Civ. App. 183]; Sipley v. Wass,47 N.J.L. 187; Babcock v. Peck, 4 Denio (N.Y.), 292; Divinny v. Jelly, Tappan (Ohio), 159; Simpson v. Lapsley, 3 Pa. St., 459; Gillum v. Kahnweiler, 2 Pa. Dist., 656.)

Since the appellant in the County Court case, even if he had desired, could not have plead in reconvention his cause of action now asserted, because the same was in excess of the jurisdiction of the court, and because it further appeared that no part thereof was in fact asserted or adjudicated in the County Court, but the jury were expressly directed that they could not consider the same or any part thereof, we hold that appellee's plea of res adjudicata ought not to have been sustained, and that the court below erred in directing a verdict in behalf of appellee based thereon. (Converse v. Davis, 90 Tex. 466; Patrick v. Hopkins County,6 S.W. 626; Crebbins v, Bryce, 24 Texas Civ. App. 532[24 Tex. Civ. App. 532]; Wood v. Cahill, 21 Texas Civ. App. 38[21 Tex. Civ. App. 38].)

Among other defenses asserted appellee claims damages against appellant for his alleged failure to properly cultivate said land and to keep down the Johnson grass thereon, as he had agreed to do, to which appellant addressed a special demurrer to the effect that appellee having failed to assert this claim in the County Court suit, which was based upon said rental contract, the judgment in that suit is res adjudicata as to said matter; but this demurrer was overruled, and on which action of the court he assigns error. We are inclined to believe that this demurrer ought to have been sustained. The rule seems to be that whatever could have been set up in the court below should have been, and a determination had thereon; and appellee's failure to assert such claim in the County Court suit would preclude his right to recover here. (Cook v. Burnley, 45 Tex. 97; Foster v. Wells, 4 Tex. 101 [4 Tex. 101]; Hatch v. De la Garza, 22 Tex. 177.)

For the errors pointed out the judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.

Application for writ of error dismissed for want of jurisdiction.