Scale v. Tompkins

Citations

• 61 Tex. 476

Syllabus

<p>1. Set-off and reconvention — Statute construed. — Art. 650 of the Revised Statutes, instead of repeating the language of the last clause of the fourth section of the act of 1840. relating to the same subject, makes use of the language employed by the supreme court in construing that clause; hence, it did not repeal that clause, and the defendant’s right to recover on a plea in reconvention does not depend upon the money character of the claim on which the suit is brought.</p> <p>2. Reconvention — Pleading.— The plea in reconvention was borrowed from the civil law, and all matters touching the cause of action, which might have been pleaded in reconvention, may be alleged in an answer under the blended system of law and equity existing in Texas. Bgery v. Power, 5 Tex., 506, referred to and discussed.</p> <p>3. Same. — The plea in reconvention is not restricted to cases where the original suit was on a moneyed demand, but may be interposed in any case where the matter pleaded comes within the description given in article 650 of the Revised Statutes.</p> <p>4. Reconvention — Damages—Pleading—Contract.— One who sold machinery sued the purchaser on his note, and sold the machinery to enforce payment, under a mortgage with power of sale. He became the purchaser, but the articles sold were still in the vendee’s possession. In a suit to recover possession of the property, the defendant pleaded in reconvention that the plaintiff had deceived him'in the character of the machinery sold, of which fact he gave the vendor notice on discovery; he charged fraud in the sale, and prayed a judgment for §100 damages sustained in loss of time for attempting to run the machinery, and for $100 as damages sustained in the expense incurred in moving it after the contract of sale. He also asked §500 as exemplary damages for the alleged fraud practiced on him. Held:</p> <p>(1) After discovering the defect in the machinery, the defendant had a right to rescind in a reasonable time, and reco