Caffarelli Bros. v. Lyons Bros. Co.

SWEARINGEN, J. On the 8th day of January, 1914, appellee the Lyons Bros. Company, filed suit in the justice court to recover from Oaffarelli Bros., appellants, the sum of $152.40 for merchandise sold, and $15.24 attorney’s fees. The pleading of plaintiff in justice court was an account filed. On March 7,1916, defendants filed a first amended answer, admitting plaintiff’s cause of action, hut alleging a set-off, and thereafter appealed to the county court for civil cases. The trial was had upon the pleadings used in the justice court, before the court without a jury. Judgment was rendered for the amount sued for by the Lyons Bros. Company for goods sold, but did not include attorney’s fees. The pleadings that appear in the transcript are the account filed by Lyons Bros. Company; a first amended answer by Caffar-elli Bros. The further pleadings which we must presume, from the record and from the court’s findings of fact and decree, are an original answer, which was oral, and a plea of two years’ limitation by the plaintiff. From which answer it appears that, to. plaintiff’s suit on account, defendants answered on March 7, 1916, admitting plaintiff’s cause of action, but alleged as a set-off to plaintiff’s cause that plaintiff had sold defendants phosphates in September, 1912, for which defendants paid in full in September, 1912; that the phosphates were unfit for .use, and that the amount paid therefor was due to defendants; that demand was made for the repayment in 1913; that the items set up in reconvention were mutual and current accounts between merchants. To this answer, filed March 7, 1916, plaintiff, we must presume, invoked, by oral plea, the statute of limitation of two years, and asserted that the items alleged as set-off were not mutual accounts and were not current accounts. The facts found by the trial court, which are sustained by the evidence and adopted by us, are as follows: “First. I find the plaintiff, the Lyons Bros. Company, filed suit against the defendants, R. C. Oaffarelli and F. P. Oaffarelli, doing business under the name and style of Oaffarelli Bros., on account for the sum of $152.40,' and that the defendants admitted in their pleadings that said sum of $152.40 as claimed by plaintiff was just and due plaintiff. “Second. I find that on March 7, 1916, the defendants, Oaffarelli Bros., filed their first amended answer and for the first time set up by way of reconvention a set;off and counterclaim to plaintiff’s cause of action. “Third. I find the plaintiff’s cause of action was for merchandise purchased on the following dates and amounts, to wit: May 1, 1913. To Merchandise, Bal. $ 5.68 October 20, 1913. To Merchandise 131.16 October 22, 1913. “ - “ 5.00 October 27, 1913. “ “ 7.04 November 6, 1913. “ “ 3.52 Total . $152.40 . “Fourth. I find that the defendants’ alleged claim against the plaintiff is for defectiye merchandise purchased during the month of September, A. D. 1912. “Fifth. I find that there were no sales of merchandise by plaintiff to defendants between the month of September, 1912, and the month of November, 1913, except the items of merchandise sold to defendants upon which plaintiff’s cause of action is bffsed. “Sixth. I find that the defendants paid plaintiff for all merchandise purchased by defendants from plaintiff during the month of .September, 1912, within a few days after the purchase of same. “Seventh. I find that all transactions between plaintiff and defendants consisted only of sales from plaintiff to defendants, and payment by defendants to said plaintiff for merchandise purchased, and therefore find that plaintiff and defendants did not have mutual and current accounts between them as merchant and merchant. “Eighth. I find that the first goods reshipped by the defendants to San Antonio, Tex., to be delivered to plaintiff out of the goods purchased from plaintiff September, 1912, and the first complaint made as to quality of same, did not occur until some'time subsequent to November, *686 1913, and that plaintiff refused to accept the goods returned. “Ninth. 1 find that the defendants delivered the goods complained of by them to their customers, and that none of the said customers complained of the said goods until five or more weeks after same had been delivered to them, and I find there was no evidence showing what care the customers took of said goods, and I furthermore find that the defendants did not directly or indirectly attempt to return any of the goods to plaintiff within less than a year thereafter, and that they did nothing at all to protect their rights or those of plaintiff by disposing of said goods at the best price obtainable. “Tenth. I find that the defendants did not, by their evidence, establish any certain amount of damage they may have sustained according to their allegations in their set-off and counterclaim.” Several of appellants’ assignments are based upon the proposition that appellants’ set-off was a mutual and current account between merchants, and that the two-year statute did not apply. It is the duty of this court to presume that the issues made by the pleadings of the parties were consistent with the orders or rulings of the trial court, which we find in the transcript in all cases originating in the justice court where oral pleadings are allowed. Maass v. Solinsky, 67 Tex. 299, 3 S. W. 289; Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591; Patty v. Gibson, 23 S. W. 392; G., C. & S. E. Ry. Co. v. Goodman, 189 S. W. 326. The trial court stated in its finding of facts the account alleged in the set-off was not a mutual account and was not current, and that the two-year statute did apply. A similar statement is made in the decree. Prom these statements we presume that |;his was properly pleaded as above stated. If the set-off was barred when first pleaded, it was not available. The question is presented : When was the set-off first pleaded? It first appears in the first amended answer filed March 7, 1916. The original of which it is an amendment is not in the record, and no data is given by which we can presume the date of the filing of the original, except the trial court’s finding of fact that the set-off was first pleaded March 7, 1916. We assume, therefore, that the original answer was an oral plea and was first made in open court on the day of the trial of the cause in the justice court, which was March 7, 1916. The cause of action pleaded as a set-off arose and was due, if ever, in September, 1912. More than two years elapsed between the time the set-off cause of action accrued and the date of filing the plea therefor. The next question is: Does the two-year statute (article 5687, Rev. St.) bar the cause, or the four-year statute (article 5688)? In our opinion the set-off cause of action was not a part of a mutual account, nor was it a current account. It was not a mutual account, because the facts show that the .items were sold at one time, a bill rendered when the goods were shipped, and payment demanded by a draft drawn on the appellant when the goods' were shipped. Instead of being a portion of a mutual account, it was the sale for cash of certain goods. The account was not current, for the reason that the amount due was stated by the seller, which statement accompanied the draft demanding immediate settlement, and this draft was paid September 21, 1912, a few days after the goods were sold. A stated and paid account cannot be a current account. Therefore the two-year statute did apply, and the set-off was barred when pleaded. Cohen v. Shwarts, 32 S. W. 820; Richardson v. Vaughan, 86 Tex. 95, 23 S. W. 640; Guichard v. Superveile, 11 Tex. 522; Leavitt v. Gooch, 12 Tex. 96; Judd v. Sampson, 13 Tex. 20; May v. Pollard, 28 Tex. 679; Whittlesey v. Spofford, 47 Tex. 17; McCamant v. Batsell, 59 Tex. 363; Handel v. Macdonell, 25 S. W. 133. The other assignments are without merit. All the assignments are overruled. The judgment is affirmed.