E. B. Nichols & Co. v. Jones

Citations

• 36 Tex. 448

Syllabus

<p>1. Plaintiffs’ cause of action consisted of a promissory note and an open account for merchandise. The defendant reconvened, alleging that plaintiffs were commission merchants, and that he had delivered to them twenty-four bales of sea island cotton to be shipped by them to Liverpool, under instructions that it should not be sold under a price stated ; that plaintiffs could have sold the cotton for a higher price than that limited, but subsequently rendered to defendant an account of sales for much less than that price; that the account of sales rendered was false and fraudulent, or, if it was a true account, that plaintiffs violated their instructions and duty, and had become liable to defendant for the value of the cotton. To this answer the plaintiffs excepted on the ground that under Article 3447, Paschal’s Digest, it was not competent to set off their demand in the manner thus proposed. Held, that the mutuality of the dealings between the parties rendered-competent the plea in reconvention, and there was no error in overruling the exception.</p> <p>2. A party is not precluded from discrediting his adversary’s witness by the fact that he had himself sued out a commission to take the witness’s deposition in his own behalf, provided he has not offered to use the deposition.</p>