On Motion for Rehearing.
As originally filed, this suit was one merely to recover a sum of money advanced by the bank to Carver Bros, and used by them in purchasing cotton. So far as the pleadings disclose, this was the only issue then presented. Had the parties gone to trial on that state of the pleadings, a prima facie case could have been made out by the plaintiffs by the introduction of any competent evidence showing the money advanced or loaned, and what amount- had not been repaid. The books of the hank would doubtless have been sufficient for that purpose.
[6] The tickets deposited with the bank were held as collateral security representing the cotton in the actual custody of the warehouseman. It would not have been necessary to produce those tickets, or to account for their loss, in order to entitle the plaintiffs to a judgment. Not until the debt was paid, or payment tendered, could their surrender be demanded. Jones on Pledges and -Collateral Securities, §§ 577, 594.. As the pleadings were then framed, it was not important for either party to have the testimony of any witness solely' for the purpose of showing what had become of the tickets, or that they had not been abstracted by an agent of Carver Bros. This loss might or might not be -accompanied by damage to Carver Bros. Such consequences would depend upon the effect this loss would have upon the ownership and right to the possession of the cotton which the tickets represented.
[7] In any event, damages resulting from such loss might be pleaded by way of set-off against the debt for which the securities were "pledged. Marberry v. Bank, 6 Tex. Civ. App. 607, 26 S. W. 215; Jones on Pledges and Collateral Securities, § 577.
[8] But such a defense involves the setting off of one cause of action against another, and must be specially pleaded in order to be available. "When Carver Bros, filed their amended answer this requirement was met, and they should have been allowed time to procure the attendance of witnesses necessary to establish the facts alleged.
[9,10] Not only was this issue presented upon the filing of the amended answer by Carver Bros., but it was also involved in the amendment filed by the appellees to their original petition in which the loss of the tickets was alleged and their disappearance charged to Pierce, the agent of’ Carver Bros. That amendment called upon the appellants to meet that issue. A general judgment for the plaintiffs in the present state of the pleadings would be a bar to any subsequent suit by -Carver Btros. for any damage occasioned by the loss of the tickets. While the court in rendering his judgment may have considered only one count of the amended petition, yet- both counts would be looked to in afterwards determining the question of res adjudicata. We have concluded, therefore, that the trial court should have granted the appellants’ motion to continue for the witnesses named.
The judgment affirming this ease will be set aside, the motion for a rehearing granted, and the judgment of the district court reversed, and the cause remanded for a new trial.