Opinion
No. 816.
March 14, 1918.
Appeal from El Paso County Court; E. B. McClintock, Judge.
Suit by the Southwestern Liquor Company against B. F. McKinney. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
P. E. Gardner, Hudspeth Harper, and L. A. Dale, all of El Paso, for appellant. A. R. Grambling, Juan Smith, and Beall, Kemp Nagle, all of El Paso, for appellee.
Appellee sued appellant upon a promissory note. By cross-action, appellant set up a counterclaim arising out of a breach of contract. It was alleged by McKinney that he had performed certain services for appellee and incurred certain expenses in the performance thereof; that appellee had agreed to pay the reasonable value of his time in the performance of said services and the expenses which he had incurred. The value of his time and the amount of expenses incurred were alleged.
An exception to the counterclaim was sustained upon the ground that the items thereof were unliquidated demands, and could not be set off against the plaintiff's demand. The items claimed in set-off were not unliquidated. McCarty v. Squyres, 34 S.W. 356; De June v. Brubaker, 5 Tex. Civ. App. 79, 24 S.W. 79; Bank v. Lynch, 6 Tex. Civ. App. 590, 25 S.W. 1042; Snelling v. Koerner, 27 S.W. 887.
The court erred in sustaining the exception. Reversed and remanded.