Traders National Bank v. Cresson , 75 Tex. 298 ( 1889 )

HOBBY, Judge.

C. C. Cresson, administrator of the estate of Charles H. Nash, deceased, sued the Traders National Bank of San Antonio to recover $1548.91, amount to the credit of said Nash on the books of said bank, it being the balance of a deposit made in.said bank by Nash during his lifetime, and which balance was held by the bank to his credit at his death.

The bank answered, “that during the lifetime of Charles H. Nash and up to the time of his death he was a depositor at said bank, and at the time of his said death had a balance to his credit of $1548.91;” and further, that the bank “at the time of the death of said C. H. Nash held a note of the said C. H. Nash, dated February 8, 1884, in the sum of $14,412.12, payable to the order of C. T. Parker four years after date, with eight per cent per annum interest from its date, said interest payable on or before November 15, 1884, 1885, 1886, and at maturity; that said note was duly endorsed by the payee, Charles T. Parker, to this defendant for valuable consideration, and was at the death of Charles H. Nash and is now held by defendant.”

The cause coming on for trial without jury, whereupon the court having heard the defendant's answer read, upon his, the court's, own motion held that the facts stated by defendant in his answer constituted no defense, and the defendant refusing to amend the court gave judgment for plaintiff—“the court ruling that the principle of setoff did not apply with reference to estates of deceased persons, and that any claim which defendant had against plaintiff must be propounded and enforced in the Probate Court.” To which the counsel for defendant objected, for the reason that “the setoff pleaded by defendant was a complete answer to plaintiff's demand and a valid defense in this action.”

The first assignment is that the court erred in declaring the facts set up in the amended original answer were no defense to plaintiff’s claim, if true.

Second. The court erred in rendering judgment upon the facts, as shown by the petition and answer.

Third. The court erred in ruling that the principle of setoff does not apply between banker and depositor upon the death of the latter.

Fourth. The court erred in ruling that the bank could not assert the defense of setoff against plaintiff's demand, but was required to assert its claim in the County Court.

The debt pleaded in setoff appears from the answer to have been due from the appellee's intestate at the time of his death to, the appellant, and having therefore been contracted in the intestate's lifetime, it extinguished, as far as it went, the claim sued on. And to the extent it so extinguished the claim sued on by the administrator, the defendant below was entitled to plead it in setoff. Smalley v. Trammell, 11 Texas, 11; Mitchell v. Rucker, 22 Texas, 66. The court therefore erred in holding that the facts stated by defendant in the answer constituted no defense.

We think the judgment should be reversed and the cause remanded.

Reversed and remanded.

Adopted December 3, 1889.