1. Setoff and Counter-Claim — Unliquidated Damages. — A claim for commissions at a specified rate agreed upon for the sale of certain machinery at a specified price and value, is not a claim of unliquidated damages, and may be pleaded as a setoff against a debt due by promissory note.
2. Limitation — Matter in Avoidance Must be Pleaded. — Where the statute of limitation is well pleaded, and it can be avoided by matter bringing the case within some exception, such matter in avoidance must be alleged; and without such allegation, proof thereof is of no avail.
STEPHENS, ASSOCIATE JUSTICE.
The counter-claim was not unliquidated, and hence could be pleaded in offset by appellees to the notes sued on by appellant. They claimed commissions at a specified rate, agreed upon for the sale of certain machinery of a specified price and value. The failure of appellant to fill the order and consummate the trade made by its agents rendered it liable for the commissions. Jones Co. v. Hunt, 74 Tex. 657.
The statute of limitations, however, was a bar to the counter-claim, unless avoided by pleading and proof. The proof tended to show that it came within the exception of accounts between a merchant and his factor or agent, but no reply was made to the limitation plea. Such matter in avoidance must be alleged, the same as coverture or other disability. Ang. on Lim., sec. 292.
For this error, the judgment must be reversed and the cause remanded.
Reversed and remanded.