
    NALLE et al. v. HARRELL et al.
    (No. 1137-5084.)
    Commission of Appeals of Texas, Section A.
    Jan. 9, 1929.
    J. S. Bracewell, of Houston, and H. H. Cooper, of Amarillo, for appellants.
    Wolters, Blanchard, Woodul & Wolters, of Houston, for appellees.
   STATEMENT OP THE CASE.

NICKELS, J.

Appellants sued defendants to recover in the sum of $1,337.50, with interest, as the price of certain materials sold upon “order No. 446.”

Appellees pleaded a contract (antedating order No. 446) whereunder appellants became obligated to furnish all such (special) materials as appellees might need in their “trade” in “the season of 1920” and whereunder “order No. 446” was made and filled and “order No. 540,” etc., was made and accepted; they alleged injury to the extent of $1,429.25, resultant of breach of the contract by appellants’ refusal to fill order No. 540, etc.

Alternatively, appellees set up a contract made through giving and acceptance of order No. 540 and its breach by appellants, with damages laid at $1,089.20.

Appellees prayer is that: “They be awarded judgment against the plaintiffs” (appellants) “for the sum of $1,429.25, less such sum as may be found that they owed plaintiffs for the goods delivered and, in the alternative, that they have judgment for $1,089.20 to be offset, however, by any recovery which might be awarded to the plaintiff.”

Trial resulted in a judgment for plaintiffs (appellants here) for the amount sued for and against defendants on all issues pursuant to a verdict directed by the judge. - Upon appeal, the Court of Civil Appeals, Ninth District, found 'lack of evidence to show a contract such as that first averred by defendants (ap-pellees here) and presence of evidence to raise an issue about the contract (breach and damages) alternatively pleaded, and reversed the judgment of the trial court and remanded the cause “with instructions to render judgment in favor” of plaintiffs (appellants here) “for the amount of their account, deducting therefrom such damages, if any, suffered by” defendants (appellees here) “under the second count in their cross-action.” (Tex. Civ. App.) 254 S. W. 1027.

Upon retrial, an issue, concerning amount of damages, “if any,” defendants suffered account of dishonor of order No. 540 — (see [Tex. Civ. App.] 294 S. W. 964), was submitted to the jury, and in response “the jury found there were no damages.” Judgment for plaintiffs (appellants here) for amount sued for, with interest, and against defendants (appel-lees here) on all issues followed. Appeal resulted in affirmance of that part of the judgment which allowed plaintiffs recovery, reversal of “that part of the judgment decreeing that” defendants “take nothing by their cross-action and counterclaim” and “remand of the cause” for “a retrial” for the purpose only of determining what sum, “if any,” defendants “are entitled to recover under their cross-action.” (Tex. Civ. App.) 294 S. W. 963, 967.

Mandate having issued from the Court of Civil Appeals pursuant to action just mentioned and having been filed below, plaintiffs (appellants here) sought issuance of execution. Thereupon defendants (appellees here) sought and obtained an order restraining the district clerk from issuing execution and staying all proceedings to enforce the judgment until final disposition of the cross-action. . Plaintiffs (appellants here) duly moved vacation of that order; their motion was denied, and they appealed. Thereupon the Court of Civil Appeals reversed the order of the district court and entered one “dissolving the injunction.” The cause is now pending upon motion of appellees for rehearing and the Court of Civil Appeals [14 S.W.(2d) -] has certified this question:

“Is Appellant Nalle entitled to the issuance of the execution demanded by him for the enforcement of the judgment rendered in his favor by the trial court and affirmed by this court prior to the final disposition of the cross-action of appellees?”

Opinion.

The relief sought by defendants on their “cross-action,” so-called, in one phase is: (a) Adjudication of their right to damages and the amount of such damages; (b) deduction from the damages thus established of the amount adjudicated to plaintiffs and judgment for the balance. In the other phase they seek: (c) Adjudication of their right to damages and the amount of such damages; (d) “offset” as between the amount thus established and the amount “awarded to the plaintiffs.”

“The great object of all discounts or set-offs is, to adjust the indebtedness between the parties, and to permit executory process to be enforced only for the balance that may be due.” Simpson v. Huston, 14 Tex. 476, 481. Set-off “is the doctrine of bringing into the presence of each other the obligations of A to B and B to A, and by the judicial action of the court making each obligation extinguish the other:” 24 R. C. L. 796; Blount v. Windley, 95 U. S. 173, 24 L. Ed. 424.

In virtue of statutory provisions (articles 2014, 2015, 2017, R. S. 1925) a defendant may avail himself of that juxtaposition and pro tanto mutual cancellation of liabilities by way of defense (Id.) as well as assert claim for judgment for whatever balance in his favor there may be (article 2215, R. S. 1925).

Averments of the bases of those rights and claims thereof make up a part of the “pleadings” to which the “one final judgment” must be “conformed” in obedience to requirement of article 2211, R. S. 1925. Hence it has been held a judgment not disposing of a reconvention is not a final one. American Road-Mach. Co. v. City of Crockett (Tex. Civ. App.) 49 S. W. 251; Lanius v. People’s Home Tel. Co. (Tex. Civ. App.) 160 S. W. 304; Brown v. Wofford (Tex. Civ. App.) 167 S. W. 764; Anderson, etc., v. Smith (Tex. Civ. App.) 167 S. W. 765.

The case made on the pleading, then, involves: (a) Ascertainment of plaintiffs’ right and am'ount due thereon; (b) ascertainment of defendants’ right and amount due thereby; (c) judicial deduction of the smaller from the larger amount and award of recovery (to the party entitled) of the balance. Simpson v. Huston, supra; Hegman v. Roberts (Tex. Civ. App.) 201 S. W. 268; Blount v. Windley, supra.

In consequence, the judgment in favor of Nalle, even though affirmed, is interlocutory, and judgment in the case cannot become final until defendants’ claims are finally adjudicated or given disposition otherwise. The necessary result of holding that the elements of the ease are severable so as to permit a judgment presently enforceable in one branch is to deny the right of mutual cancellation by judicial action which we say is established in our law.

Accordingly we recommend that the question certified be answered “No.”

OURETON, O. J.

The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.  