Smith v. Sherwood
Texas Supreme Court
This suit was instituted by Sherwood, the appellee, against ;Smith, the appellant, for the tortious taking and conversion of •one hundred and twenty bushels of corn which the former alleged the latter had sold and delivered to him. The ^answer contains a general denial and a plea of set-off.
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This suit was instituted by Sherwood, the appellee, against ;Smith, the appellant, for the tortious taking and conversion of •one hundred and twenty bushels of corn which the former alleged the latter had sold and delivered to him. The ^answer contains a general denial and a plea of set-off. It appears from the statement of facts that the plaintiff below had exchanged corn with the defendant; that the latter had delivered the corn sued for to the plaintiff, who by the permission ■of the defendant had put it in a pen by itself, th¿ defendant •consenting that it should remain on the premises…
1Opinion of the CourtJustice Wheeler
For the appellant it is insisted,
1st. That the court erred in refusing the instruction asked..
2d. That the verdict was for an amount excessive and not warranted by the evidence.
1. The instruction asked by the defendant went to the question of a failure of consideration. But there is in the answer-no averment of a failure of consideration and no intimation off any intention on the part of the defendant of relying upon that defense. And we have repeatedly decided that a party cannot avail himself thus of an affirmative, substantive defensa-which he has not averred.
*463. But bad this defense been…
2Cases cited2 opinions
- Foster v. SmithTexas Supreme Court · 1846
- Sheldon v. SkinnerNew York Supreme Court · 1830
3Cited by13 opinions
- Southern Cotton Press & Manufacturing Co. v. BradleyTexas Supreme Court · 1880
- Scarbrough v. AlcornTexas Supreme Court · 1889
- Estate of Moore v. CommissionerCourt of Appeals for the Fifth Circuit · 1995
- Flannery v. WoodCourt of Appeals of Texas · 1903
- Hubbell, Slack & Co. v. Farmers' Union Cotton Co.Court of Appeals of Texas · 1917
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