ON THE MERITS. Appellant brought this action against appellees in the circuit court of Amite county on an itemized sworn account for goods, wares, and merchandise theretofore sold by appellant to appellees. The amount of the account for which recovery was sought was five hundred seventeen dollars and sixty-five cents. There was a trial before the court and a jury, resulting in a verdict and judgment for appellees against appellant in the sum of eighty dollars and fifteen cents. From that judgment appellant prosecutes this appeal.
There was exhibited with appellant's declaration the itemized sworn account. Appellees pleaded the general issue, and with it a counter affidavit, setting up that they did not owe the amount sued for, five hundred seventeen dollars and sixty-five cents, or any part thereof; that appellees had not been given credit for the payment on account of five hundred twenty-seven dollars and twenty-eight cents, and for the invoice value of goods returned to appellant, nineteen dollars and eighty cents, making a total of five hundred forty-seven dollars and eight cents, which was an overpayment to appellant of eighty dollars and fifteen cents, the amount of the judgment in the appellees' favor.
In their counter affidavit appellees asked for judgment over for the eighty dollars and fifteen cents "by way of recoupment." Appellant filed a replication, denying the appellees' counterclaim of eighty dollars and fifteen cents, but admitting that appellees were entitled to a *Page 181 credit of nineteen dollars and eighty cents for goods returned, and the payment by appellees of five hundred twenty-seven dollars and twenty-eight cents; but averring that such payment was made on a former account, and not on the account sued on.
At the time of the trial neither appellant nor its counsel was present; the jury was duly impaneled and trial had in their absence. In appellant's brief the claim is made that the absence of appellant and its counsel at the time of the trial was the result of some misunderstanding between the parties. However, there is nothing in the record to show that the appellant was misled by appellees as to when the trial would take place.
Appellant contends that the judgment over against it for eighty dollars and fifteen cents was on a plea of recoupment by appellees, and for that reason the judgment is void; that under the law such a plea is defensive only, and cannot be used offensively; citing, among other authorities, Sterling Products Co. v. Watkins-Gray Lbr. Co., 131 Miss. 145, 95 So. 313; and W.T. Adams Machine Co. v. Thomas, 87 Miss. 391, 39 So. 810. But the trouble with appellant's position is that appellees did not plead the eighty dollars and fifteen cents by way of recoupment, but as a set-off. It is entirely immaterial with what name appellees labeled their plea; the substance of the plea controls, and not its name. Calling a plea of set-off a plea of recoupment does not change its character from the former to the latter. Appellees' plea of set-off was filed under section 537 of the Code of 1930, and substantially complied with the requirements of the statute.
Appellant contends that the judgment is void because the pleadings, on their face, as well as the evidence in the case, show that appellees' set-off did not grow out of a mutual indebtedness between the parties. The set-off statute provides that: "Where a mutual indebtedness exists between the plaintiff and defendant, the defendant *Page 182 may plead and set off against the demand of the plaintiff any debt or demand which he may have against the plaintiff," etc. "Mutual indebtedness" implies that there have been dealings between the parties, each becoming indebted to the other; each reciprocally acting, giving, and receiving. Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 66 So. 214.
We think the record of this case shows exactly such mutual dealings between appellant and appellees. Both parties were merchants. Appellant was selling to appellees goods, and the latter were making payments thereon, and returning some of the goods to appellant for credit on account, as it appears they had the right to do. According to the evidence on the trial, as a result of such mutual dealings, appellees erroneously overpaid appellant the sum of eighty dollars and fifteen cents.
Appellant contends that the judgment is void, because the plea of the general issue and the plea of set-off could not be pleaded together. That contention of appellant's is denied by section 533 of the Code of 1930, which expressly provides, among other things, that "the general issue, denial of debt or contract sued on, tender in whole or in part, statute of limitations, set-off," etc., may be pleaded together. And in Weil Bros. v. Wittjen,116 Miss. 514, 77 So. 308, it was so held.
We are of opinion that appellant's further contention that the evidence introduced on the trial was entirely insufficient to sustain the judgment is without merit.
Affirmed. *Page 183