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21 Tex. 358

Carothers v. Thorp

Texas Supreme Court

Decided July 1, 1858

Texas Supreme Court · decided 1858-07-01

Tried below before Hon. J. H. Bell. On the 15th of January, 1853, the appellant, with Royall & Selkirk as his securities, executed three notes in favor of John L. Thorp or order, all to fall due on the 1st of January, 1856; one was for $137 50, for the hire of a negro boy named Taswell; the second for one hundred dollars for the rent of some cleared land ; and the third for $125 00, for the hire of a negro, woman named Bridget.

Good law ✅— No negative treatment on recordhow we know

Decided 1858-07-01

How this case has been cited

Cited by 10 later decisions — most recently December 1928

10 state decisions

4018581860187018801890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Wheeler, J.

¶1The limit which the decisions of this Court have assigned to the right to plead in recenvention in our practice is, that the matter pleaded, or the damages claimed, must have grown out of, or be in some way connected with or incidental to the main action. (Egery v. Power, 5 Tex. R.. 501; Walcott v. Hendrick, 6 Id. 406 ; Cannon v. Hemphill, 7 Id. 184.)

¶2The notes sued on and mentioned in the answer evidence-several contracts. It is not averred that they are parts of one and the same agreement; nor does it appear by the answer, that they had any necessary connexion or dependency. If not; if they were several and independent contracts, the-*362breach of one could not affect the rights of the parties under the others. Damages arising from the breach of one could not be pleaded in reconvention to the action upon the others, because not connected with or incidental to the main action. The answer was excepted to on that ground ; and we think the exception well taken. If in point of fact the several notes were parts of the same agreement, the defendant should have so amended his answer, when it was specially excepted to because it did not so appear, by stating distinctly the facts showing the connexion of the breach of contract with the cause of action. The answer did not set up any equitable matter of defence to bring the case within the decisions which have admitted such defences, (Castro v. Gentilly, 11 Tex. R. 28,) and we are of opinion the Court did not err in sustaining the exceptions. The judgment is affirmed.

¶3Judgment affirmed.

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