Another v. Lee
| Citation | 10 Tex. 155 |
| Parties | KINNEY AND ANOTHER v. LEE. |
| Decision Date | 01 January 1853 |
| Court | Supreme Court of Texas |
An order to pay a certain amount “out of proceeds of cattle to be sold for my account when the same shall be received by you” is not a bill of exchange; and the acceptor of such an order becomes liable to the holder to the same extent as he would have been liable to the drawer if no such order had been given; no further.
Where suit was brought on a conditional promise, but there was no averment of the happening of the condition, but afterwards, and after four years, an amendment was filed, which averred that the condition had happened before the commencement of the suit; Held, that limitation was interrupted by the filing of the petition. (Note 28.)
Error from Galveston. Lee brought suit against Kinney & Aubrey, as acceptors, and Newell, as indorser, of a certain draft or order of the following tenor:
City of Aranzas, October 2d, 1840.”
which was indorsed by the payee, without recourse.
The draft was made part of the petition, and in an amendment the plaintiff alleged that though Aubrey & Kinney had received large quantities of cattle, at the time of their acceptance and afterwards, from Newell, and although a reasonable time for the sale of such cattle had elapsed, and although they had sold such cattle to a much greater amount than that called for by the acceptance, they still refused to pay; and plaintiff alleged that one year was a reasonable time within which to sell such cattle.
The petition was filed February 3d, 1845. Service of citation was made on Aubrey and Newell in the same year, but not on Kinney until May 10th, 1849. Amendment to petition was filed November 29th, 1849.
Newell answered by demurring generally, and the general denial. Kinney answered by a general and special demurrer and several pleas in bar: alleging in the fourth plea that the firm of Aubrey & Kinney did not receive the amount of the draft out of the proceeds of cattle to be sold on account of Newell before the suit; and in the fifth and sixth pleas, that the cause of action did not accrue, and that the defendant did not promise, &c., within four years next before the commencement of the suit.
At the May term, 1851, the plaintiff recovered a verdict and judgment against the defendants Newell and Kinney, and judgment was also entered against Aubrey for $1,631, the principal and interest reckoned from the expiration of eighteen months from the date of the draft. A motion for new trial was overruled.
It was proved on the trial that eighteen months was a reasonable time within which...
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...line of Texas cases, dating from 1851, assert this doctrine, beginning with Wells v. Fairbanks, 5 Tex. 583, followed and cited in Kinney v. Lee, 10 Tex. 155, decided 1853; Coles v. Portis, 18 Tex. 156, cited by the same court in Scoby v. Sweatt, 28 Tex. 713, 730, where the court says: "If i......
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Johnson v. Texas Cent. R. Co.
...in the absence of special exception, would interrupt the statute of limitations. See Killebrew v. Stockdale, 51 Tex. 529; Kinney v. Lee, 10 Tex. 155. The additional ground of negligence under consideration was not a new cause of action, as appellee insists, but rather in the nature of an am......
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...48 Tex. 560. It has been held that a petition bad on general demurrer is sufficient to interrupt the statute of limitations. Kinney v. Lee, 10 Tex. 155; Killebrew v. Stockdale, 51 Tex. 532; Kauffman v. Wooters, 79 Tex. 214, 13 S. W. That a party plaintiff may, in a proper case, be dropped b......
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...period, were so lacking in averments essential to the statement of a cause of action as to be bad on general demurrer." See Kinney v. Lee, 10 Tex. 155; Thouvenin v. Lea, 26 Tex. 612; Elmo v. James (Tex. Civ. App.) 282 S. W. 835; Tarkington v. Broussard, 51 Tex. 550; Fuller v. El Paso Times ......