Sheldon v. Martin

Citations

• 65 Tex. 409
• 1886 Tex. LEXIS 680

Syllabus

<p>1. Set-off—Judgment—Subsequent agreement—Liquidated demand—November 14, 1883, S. recovered a judgment against M., as assignee of Fondard & Yglesias, for $1,280.62 and foreclosure of a lien on certain goods then in the possession of M. as such assignee. By agreement between S. and M. this judgment was, on December 3, 1883, in part satisfied, by the former’s accepting and receiving from the latter a portion of the goods, at a valuation of $660.63. December 15, 1883, S. executed to M. as assignee his promissory note for $817.62, with the understanding and agreement between himself and M., at the time, that he did not thereby waive or release his right to the unpaid balance of the judgment or to his lien on the portion of the goods retained by M., but that the latter, notwithstanding the execution of the note, should pay the balance of the judgment or deliver to S. the remainder of the goods. M. applied the goods retained by him to the payment of his assignor’s creditors consenting to the assignment, and failed to satisfy S.’s judgment against him. In a suit by M. against S., on the note. Held:</p> <p>(1) That the balance due on the judgment was a liquidated demand against the assignee, and could be pleaded in set-off against the promissory note sued on;</p> <p>(2) That the judgment against M. in favor of S. was not superseded by the subsequent agreement between them, and that, even if such were the case, the balance due for the goods undelivered under the agreement would be a liquidated demand, the amount of which could be easily ascertained, and might, under the statute of this state, be set-off against the note executed by S. to M.</p>