Cato v. Philips , 28 Tex. 101 ( 1866 )

Donley, J.

—It was relied upon as a defense to this action, that appellee had wrongfully sold land belonging to appellant for the sum of $3,600, which amount the appellee had received, and appellant asks that it he allowed him in set-off.

It was competent for appellant to waive any right of action that may have accrued to him on account of the illegal sale of his property, and recover from appellee the money which he had received for the land. The count for money had and received is sustainable in some cases where the money has been received tortiously. (1 Chit. on Plead., 353.)

In this case, the appellant, by his answer, elects to affirm the sale, and receive from the appellee the consideration which was paid to appellee for the land. Of his right to do this there can he no doubt.

The further question arises, whether this claim may avail the appellant in offset. It is believed that it can.

The claim of the appellant is for a certain amount, the money that was received for his land, and is clearly within the provision of the statute allowing discounts and set-offs. (Hart. Dig., Arts. 608, 610.)

The judgment of the District Court is reversed, and the cause

Remanded.

Coke, J., having been of counsel, did not sit in this case.