Opinion
No. 1571.
January 24, 1924.
Appeal from El Paso County Court at Law; J. M. Deaver, Judge.
Action by S. A. Birdsong and others against E. Azar and others. From a judgment allowing defendants' counterclaim, plaintiffs appeal. Affirmed.
Julian P. Harrison, of El Paso, for appellants.
W. H. Fryer, of El Paso, for appellees.
Appellants sued appellees to recover the sum of $137.25, the alleged agreed price of certain merchandise sold and delivered to appellees on May 27, 1920.
Appellees answered that upon another date they purchased 605 pounds of almonds from appellants at an agreed price of 52 cents per pound, and paid therefor; that afterwards, upon receiving the almonds, it was discovered that 293 pounds of them were so rancid and wormy that they were worthless and unsalable and had to be thrown away; wherefore appellant was indebted in the sum of $151.36 to appellees, which was pleaded in set-off.
Upon trial without a jury the counterclaim of appellee was allowed and set off against the appellant's claim.
Appellant presents the proposition that their suit was upon a liquidated demand and the counterclaim of appellees could not be set off against it, because it is an unliquidated demand founded upon a cause of action not arising out of or in any wise incident to or connected with appellants' cause of action. Appellants' proposition is correct, except in so far as it asserts that appellees' counterclaim is unliquidated. The sale of the almonds was alleged and shown to be at the agreed price of 52 cents per pound, and 293 pounds were rancid, wormy, and worthless. Appellees' claim for the value of the worthless almonds at the agreed price of 52 cents per pound is a liquidated demand and could properly be set off against the appellants' liquidated demand. Article 1329. R.S.; Snelling v. Koerner (Tex.Civ.App.) 27 S.W. 887; Harrington Lumber Co. v. Smith, 44 Tex. Civ. App. 363, 99 S.W. 110; Bank v. Van Hutton (Tex.Civ.App.) 208 S.W. 363; Jones Co. v. Hunt, 74 Tex. 657, 12 S.W. 832.
Another proposition is that the court erred in overruling an exception to the cross-action, because the same failed to state what disposition was made of the defective almonds. This is without merit, because it was alleged that such almonds were thrown away. Furthermore, if they were worthless, it was immaterial what disposition was made of them.
Affirmed.