Mitchell v. Rucker
Texas Supreme Court
Appeal from Ellis. Tried below before tbe Hon. Ed. H. Yon-tress. Appellee, as the administrator of Thomas O. Rucker, deceased, brought suit, on the 24th of Sept. 1866, against appellant, upon an open account, for the recovery of the sum of $430; the bill of particulars of which, attached to the petition, was as follows, to wit: “¥m. L. Mitchell, Dr. to Thomas O. Rucker.
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Appeal from Ellis. Tried below before tbe Hon. Ed. H. Yon-tress. Appellee, as the administrator of Thomas O. Rucker, deceased, brought suit, on the 24th of Sept. 1866, against appellant, upon an open account, for the recovery of the sum of $430; the bill of particulars of which, attached to the petition, was as follows, to wit: “¥m. L. Mitchell, Dr. to Thomas O. Rucker. In the fall of 1853, to fifty dollars, loaned money, $ 50 00 April, 1854. To one hundred and forty dollars, which was to have been appropriated in building a house, 140 00 August, 1854. 1 Buggy, to two hundred and fifteen…
1Opinion of the CourtRoberts, J.
The account pleaded in set-off, in this case, consisting of items similar in their nature to those of plaintiff’s account, upon which the suit was brought, constituted a good defence to the action. It is true, that defendant had not placed his claim in condition, to authorize him to recover a judgment against the administrator, should his (defendant’s,) claim prove to be the largest. Such excess he had no right to recover under the pleadings. It was not necessary for defendant to have presented his account duly authenticated; but, without that, it operated as an extinguishment of plaintiff’s…
2Cases cited1 opinion
- Smalley v. Trammel's Adm'rTexas Supreme Court · 1853
3Cited by10 opinions
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- Walker, Administrator v. FearhakeCourt of Appeals of Texas · 1899
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- Goodman v. Henley GabbertTexas Supreme Court · 1891
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