determining that both demands must mutually exist in the same parties and in the same capacity or right
How later courts described this case
- determining that both demands must mutually exist in the same parties and in the same capacity or right
Written by the judges who cited it.
The opinion
Motion for Rehearing
DIES, Chief Justice.
On motion for rehearing, plaintiffs vigorously argue that this court should have modified the judgment of the trial court so as to grant to Brook Mays Piano Company of Houston, a partnership, an effective judgment for the amount due to it * rather than allowing it to be set-off against defendants’ notes from the other four business entities involved herein. We agree.
The debt in question is one due solely to Brook Mays Piano Company of Houston, but this company is the only entity which did not owe defendants any money under the buy/sell agreements.
Under the rules applicable to set-off, same is proper only where the demands are mutual, between the same parties, and in the same capacity or right. Masterson v. Goodlett, 46 Tex. 402, 407 (1877); Greathouse v. Greathouse, 60 Tex. 597, 598 (1884); Thompson v. Prince, 126 S.W.2d 574, 576 (Tex.Civ.App. — Waco 1939, writ ref’d). Since no debt was due from the estate to any entity other than Brook Mays Piano Company of Houston, it was improper under the foregoing authorities for the trial court to set-off the debt owed
by defendants’ decedent against the sums owed by the other four entities to defendants. Moreover, as no sums were due defendants from Brook Mays Piano Company of Houston, set-off was likewise unavailable as against this entity.
Accordingly, we have concluded that the cause of action for decedent’s debt to Brook Mays Piano Company of Houston should be severed from the main action. It is so severed and, as to it, the judgment of the trial court is reversed and judgment rendered that plaintiff Brook Mays Piano Company of Houston recover of and from the estate of Filmore M. Sondock the sum of $118,789 with interest of nine percent from the date of the trial court’s judgment.
All other points urged by plaintiffs on this motion for rehearing are overruled. Our prior judgment is modified to reflect the severance, reversal and rendition as to the $118,789 debt due to plaintiff. In all other respects our prior judgment is affirmed.
Defendant by her brief admitted that the parties stipulated at the outset of the trial of this cause that decedent’s estate was indebted to plaintiff Brook Mays Piano Company of Houston, a partnership, in the sum of $118,789.