Mitchell v. Rucker

A defendant may plead in set-off, an account, consisting of items similar in tlieir nature to those of the account upon which he is sued by plaintiff, as administrator, without having had the same duly authenticated and presented to the administrator, for allowance, as a valid claim against the estate of the intestate. In such case, the defendant could not recover a judgment against the adminis- ' tor, should his (defendant’s,) claim prove the largest, but it would operate as an extinguishment of plaintiff’s debt. A plea of set-off, that defendant was the owner and holder, at the commencement of the suit, of a note executed by plaintiff’s intestate to a third party, or bearer, with other averments fully describing the note, is insufficient upon general demurrer ; because it does not show that defendant acquired the note before the death of the intestate.

Appeal from Ellis. Tried below before tbe Hon. Ed. H. Yon-tress. Appellee, as the administrator of Thomas O. Rucker, deceased, brought suit, on the 24th of Sept. 1866, against appellant, upon an open account, for the recovery of the sum of $430; the bill of particulars of which, attached to the petition, was as follows, to wit: “¥m. L. Mitchell, Dr. to Thomas O. Rucker. In the fall of 1853, to fifty dollars, loaned money, $ 50 00 April, 1854. To one hundred and forty dollars, which was to have been appropriated in building a house, 140 00 August, 1854. 1 Buggy, to two hundred and fifteen dollars,......215 00 In 1854. To twenty-five dollars, loaned money, - 25 00” On the 25th of October following, aj>pellant filed his answer, denying that he was indebted to plaintiff’s intestate, at the time of his death, in the said sum of money, or any part thereof. He also pleaded, that “the plaintiff’s intestate, Thomas O. Rucker, “in his lifetime, to wit, during the year 1854, the precise date “he does not remember, became and was justly indebted to “defendant, in the sum of two hundred and ninety-eight dollars, “for various articles and services furnished to, and performed “for said intestate, at his special instance and request, which said “articles and services are more fully described in the bill of particulars, herewith filed, marked Exhibit ‘W,’ and prayed to be “taken as a part of this answer; and was so justly indebted in “said sum of $290, at the time of his death, and his estate is “ still justly indebted to defendant in said sum of money. ” It was also averred in the said plea, “that plaintiff’s intestate is justly “indebted to defendant, in the further sum of $163 35, as will “appear by a certain promissory note, payable to David S. “Files, or bearer, and executed by the said Thomas O. Rucker, “by the name of Thomas Rucker, on the 12th day of September, 1854, and due one day after date ; and defendant says “that he is the owner of said note, for a valuable consideration, “and was the owner and holder of the same, at the commence“ment of this suit, which said note is herewith filed, marked “ Y, and prayed to be taken as a part of this answer; the defend“ant pleads his debt aforesaid against said Thomas O. Rucker, “in re-convention, and prays judgment for his said debts of “461 35, &c.” Exhibit W. “Thomas O. Rucker, to Wm. L. Mitchell, Jr., Dr. 1854. To 140 bushels of corn, at $1,00 per bushel, $ 140 00 “ “ 10 bushels of wheat, at $1,00 per bushel, 10 00 “ “ 50 lbs. of bacon, at 15 cents per lb., 7 50 “ “ 200 lbs. bacon, at 14 cents per lb., - 28 00 “ “ Cash, - - - 80 00 “ “ 1 Saddle, - - - 23 50 “ “ Subscription paid State Gazette, - 3 00 “ “ Expenses at San Antonio, on business for Thomas O. Rucker, - - 6 00” To which plea, the appellee filed a general demurrer, and the following special exceptions: “ 1st. There is no averment that said claim has been proven “up and authenticated, as the law requires. “ 2d. The said claim is not accompanied by the affidavit of “defendant, that he has allowed all just offsets, &c. “ 3d. The answer does not show, that said claim was ever “presented to said administrator, for his approval or acceptance, “and that the same was rejected by said administrator, &c.” These exceptions were sustained by the court. The case proceeded to trial upon the other issues, and there was a verdict and judgment for the appellee, for the sum of $85.