Holliman v. Rogers

• Citation: 6 Tex. 91
• Parties: HOLLIMAN v. ROGERS.
• Decision Date: 01 January 1851
• Court: Supreme Court of Texas

6 Tex. 91

HOLLIMAN

v.ROGERS.

Supreme Court of Texas.

1851.

Where the defendant pleaded “that the notes sued on have been fully paid, satisfied, and discharged on or about the 1st of April, 1842:” Held, That no question could be raised as to the sufficiency merely of the plea as a plea of payment; that if the defendant offered evidence of payment under such a plea, the question would then arise whether the evidence should be rejected because it had not been sufficiently and distinctly stated either in the plea or an accompanying statement. (Note 14.)

The proper mode of objecting to defects of form in pleading is by exceptions, not by motion to strike out.

Where the defendant pleaded that the real interest in the notes sued on was in a person who was a joint maker with himself, and that he, the defendant, had a set-off against such person, setting it out fully in his answer: Held, That evidence that the joint maker had paid and taken up the notes sued on after they were due was improperly excluded.

Where a note is paid by one of several makers, he cannot, although he be a mere surety, maintain an action on the note. His remedy would be upon the implied assumpsit in his own name, the implied assumpsit not being assignable. (Note 15.)

The general rule that a defect of parties can be taken advantage of by plea in abatement only is subject to exceptions, and one exception is that a defendant may take advantage of a defect in a party plaintiff on the trial if it should appear from the evidence, although not pleaded.

The principle of “compensation” as it is called in the civil law, is not recognized either by the common law or by statute, except in the case of running accounts.

Therefore the question whether a note which is pleaded in set-off is barred by the statute of limitations is unaffected by the fact of mutual indebtedness between the plaintiff and defendant.

Appeal from Liberty. This suit was brought by the appellee against the appellant on the 8th of August, 1845, on two notes, under seal, for five hundred dollars each, both dated the 1st of August, 1840; one payable on the 1st day of January following, and the other on the 1st day of January, 1842, to one Elijah Frank or bearer, and both executed jointly by the defendant, Isaac C. O'Neil, and James H. Grace. The defendant pleaded a general denial, the statute of limitations, and that the plaintiff had no interest in the suit, but was the agent of the aforesaid James H. Grace, in whom the real interest was, and against whom the defendant had a large claim, which consisted of promissory notes of the said Grace. These were pleaded in set-off, were dated the 22d of July, 1836, and were payable six months after date.

The defendant pleaded further “that the notes sued on have been fully paid, satisfied, and discharged on or about the 1st of April, A. D. 1842.” This last plea was, on motion of the plaintiff, stricken out “as being defective under the statute.” On the trial the plaintiff gave in evidence the notes sued on.

“The defendant offered to prove by the answer of one Battle, to an interrogatory propounded to him, that he, Battle, was the holder and owner of the notes sued on, and that James H. Grace had paid and taken them up on the 1st of April, 1842;” which evidence was ruled out by the court, to which ruling the defendant, by his counsel, excepted. The court ruled out further testimony which was offered to prove that Grace had paid the notes as alleged. But the defendant was permitted to introduce evidence tending to prove that Grace was the party really interested, and that plaintiff was merely his agent. The defendant then proved the notes which had been pleaded by him in set-off.

The court charged the jury “that if the notes offered in set-off by the defendant had been due four years at the passage of the statute of limitations, on the 5th of February, 1841, then six-tenths of four years from the passage of the statute would be the period of time within which they could be sued on or set up in set-off, and not afterwards, if the statute of limitations was invoked against them;” to which charge the defendant's counsel excepted.

The defendant's counsel asked the court to charge the jury “that if they believed from the evidence that the notes sued on were the property of James H. Grace, and that the several notes offered by the defendant as evidence in set-off were genuine notes of James H. Grace, and were unpaid, and were in the possession of the defendant, as his property, at any time before they were barred by the law of limitation, and while the notes sued on were the property of James H. Grace, the notes offered in set-off operated as payment or compensation pro tanto;” which the court refused.

There was a verdict and judgment for the plaintiff for the full amount of his claim.

B. C. Franklin, for appellant.

I. The first point which the appellant presents to the consideration of the appellate court arises out of the decision of the court below on the exceptions of the plaintiff to the pleas filed by defendant. The court sustained the exceptions to the plea of payment. That there is manifest error in this there can be no doubt. The case of Wells, Administrator, v. Fairbanks, decided at this term of the Supreme Court, is directly in point; and for this error the judgment should be reversed.

II. There was error also in excluding all evidence that the note had been paid by Grace, one of the joint makers. Here the court below must have seen the injustice done to the defendant in his former ruling. He should have set aside his former ruling and admitted the evidence, for otherwise he would be permitting a recovery to be had against this defendant on a promissory note, all liability on which had been extinguished by the payment of the note by one of the joint makers. The debt was extinguished by that payment, and no action could be maintained on the notes. It seems to me that the testimony was admissible as going to sustain the first plea that James H. Grace was “the real party in interest,” and that the plaintiff had no interest in the claims sued on.

III. At what time would the notes pleaded in set off be barred, under the statute of limitations, according to the decision of this court in the case of Gautier v. Franklin? They were dated 22d July, 1836, and were all due at six months, or on the 22d January, 1837, so that they would not be barred until the 1st of July, 1843. Grace paid the notes to Battle about the 1st of April, 1842; so that at the time and up to the 1st July, 1843, the claims were mutual claims, and in Grace's hands, if he had not have been one of the payers of the notes sued on. He could have had no just claim against the defendant that was not extinguished by the notes which the defendant held against him then due and unpaid and not barred by the statute of limitations.

IV. The fourth bill of exceptions presents error also in the ruling of the court; because it sustains the principle that though there may have been mutual debts, because the notes pleaded in set off were barred at the time of the plaintiff's suit, 8th August, 1845, they could not be pleaded so as to show that the debt founded on the notes sued on was extinguished at any time before they were barred.

V. The evidence admitted proved that the plaintiff had no legal or equitable interest in the notes sued on. And that constituted a good bar to the plaintiff's action; for so long as the facts existed as they did exist at the time of instituting the suit by the plaintiff, he could not maintain a suit.

W. C. Abbott, for appellee.

I. The first cause assigned for error is that the court sustained the motion to strike out the plea of payment. If language has any force, and the statutes of the State are to be observed, the court could not have done otherwise. (Hart. Dig., art. 607.) If it is necessary for a party to state distinctly the nature of the payment, and that he shall not be entitled to prove before the jury the nature of the payment unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character of it, it would seem that a simple averment that the notes were paid would not meet the requirements of the statute.

II. The second cause assigned is that the court ruled out the testimony so far as it went to prove payment. The admissibility of evidence depends upon its materiality. If testimony is impertinent it is inadmissible. And if the ruling of the court was correct in ruling out the plea of payment, it necessarily followed that evidence to prove payment was inadmissible, the statute above referred to declaring that it shall not be...