Bailey v. Hicks

• Decision Date: 01 January 1856
• Citation: 16 Tex. 222
• Parties: NATHANIEL BAILEY v. RACHAEL HICKS.
• Court: Texas Supreme Court

16 Tex. 222

NATHANIEL BAILEY

v.RACHAEL HICKS.

Supreme Court of Texas.

1856.

Where the question was, to whom the credit was given on an account, and the evidence was conflicting, the court said that the non-production of the books in which the goods were charged could but be regarded as a circumstance unfavorable to the plaintiff; one which had, and was entitled to have, its weight with the jury in forming their conclusion as to the fact. [[[

Where goods are furnished to one person upon the sole credit and responsibility of another, the former is not responsible in an action by the person furnishing the goods to recover the price.

If a proper ground for the admission of the evidence was not laid in the pleadings of the defendant, the plaintiff should have objected to its introduction at the time. Not having done so, he cannot ask a new trial on the ground that its admission operated a surprise upon him. But it would be difficult to maintain that the evidence was not admissible, under the pleadings, to explain and rebut the plaintiff's evidence.

Error from Polk. Tried before the Hon. Peter W. Gray.

Suit by appellant against William C. Hicks and Rachael C. Hicks, his wife, commenced April 17, 1851, for the balance of a store account for necessaries “contracted for by her in the year 1849, and furnished herself and children, and for expenses incurred by her during that year, for the benefit of her separate property;” also for the amount of an account “for necessaries contracted for by her in the year 1850, and furnished herself and children, and for expenses incurred by her during that year for the benefit of her separate property; all which indebtedness, amounting to nineteen hundred and seventy-three dollars and sixty-two cents, plaintiff avers to be reasonable; and the said William and Rachael, being so indebted, afterwards, to wit: on the 31st of December, 1849, the time the first account became due, promised to pay the same on request; and on the 31st of December, 1850, the time the account last above named became due, promised to pay the same on request, yet,” etc. Copies of the accounts were annexed to the petition and made parts thereof, commencing, Mrs. Rachael Hicks, in account with N. Bailey, Dr., for necessaries furnished her family and plantation for the year 1849. And so of the other.

Fall term, 1851, death of William C. Hicks suggested, and his representative, Rachael Hicks, ordered to be cited, which was done. Rachael Hicks filed her separate answer, containing a general demurrer, general denial and specific denials, that she did not purchase the articles charged in said accounts, nor any of them, nor were they delivered to her, nor for her use or that of her children, nor for the benefit of her separate property; and plea of statute of limitations. As administratrix, she filed a general demurrer, general denial, and plea of the statute of limitations.

Spring term, 1852, defendant's attorney gave notice in writing to the attorney of plaintiff, “to produce your original book or books of entries, day book, journal and ledger, containing the original entries of the items mentioned in the accounts filed by you in said cause, that the same may be inspected by the defendants, and for no other purpose unless said defendants may introduce them as evidence.” To which the attorney for plaintiff replied in writing: “The defendants are hereby notified that they cannot see the books on the terms mentioned.”

Fall term, 1854, plaintiff amended by alleging the insolvency of William C. Hicks at the time of the purchase of the articles and at his death; and that the goods were sold, etc., upon the faith and credit of the separate property of Mrs. Hicks, which consisted, etc., and that they were necessaries for herself and family and for the benefit of her separate property.

Spring term, 1855, defendants' demurrer overruled, trial, verdict for the defendants. Motion for new trial overruled.

It appeared from the statement of facts that the accounts were for supplies, etc., for a family composed of William C. Hicks and wife, their two daughters and two nieces, and some negroes, what number did not distinctly appear; it did appear that there were sixteen negroes belonging to the nieces, and a witness testified that on the payment of certain mortgages on the property of William C. Hicks before 1849, the plantation and some of the negroes were reconveyed to his wife, Rachael. It appeared that fifteen or sixteen hands were employed upon the farm in 1849 and '50. The plaintiff did not produce his books, but proved the accounts by his son, who had been his clerk, and who testified that he knew most of the articles to have been delivered to Mrs. Hicks and her daughters; that his father kept correct books and that he knew the accounts to be correct, from having compared them with the entries in the books, in witness' handwriting. The defendants proved that the plaintiff said he had refused to credit William C. Hicks after 1848; that Thomas Hicks, who was a bachelor, and guardian of the nieces, and who had their negroes brought out from Louisiana, where he resided, had told the plaintiff that anything he would furnish the plantation he would see it paid or would pay it, the exact terms not being clearly proved; but it was proved that after Thomas Hicks died, which was in the latter part of 1850 or early in 1851, the plaintiff presented these same accounts to the administrator of said Thomas Hicks, made out in the name of William C. Hicks, agent for Thomas Hicks, and told the administrator that Thomas Hicks had told him to furnish the family and plantation of Wm. C. Hicks with anything they wanted, except liquor for Wm. C. Hicks, and that he would pay it. The accounts were not sworn to, but witness (the administrator of Thomas Hicks) told plaintiff he would pay it, that the crop made on the Hicks plantation in 1850 should go to the payment of the accounts (witness had married one of the nieces); and they went to the plantation to deliver the crop, but Mrs. Hicks claimed the crop, which was already marked and baled, and witness then refused to pay the accounts; afterwards witness told plaintiff that the estate of Thomas Hicks would not pay more than fifteen or twenty cents on the dollar, and the accounts were not presented again for allowance.

It also appeared that the plaintiff, in receipting the bill of one of his customers, who had paid it by furnishing corn to the Hicks plantation, wrote the receipt as...