Bigham v. Cropper
| Decision Date | 06 February 1885 |
| Docket Number | Case No. 1853. |
| Citation | 63 Tex. 271 |
| Parties | SAM. W. BIGHAM v. TALBOT & CROPPER. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Comanche. Tried below before the Hon. W. A. Blackburn.
Appellees brought suit against appellant, July 13, 1876, to recover certain moneys claimed to be due them as the assignees of a contract made and entered into between appellant and W. H. Woodhouse, concerning the transportation of the United States mail upon certain routes named. The cause was tried and appealed, and was by the supreme court reversed and remanded. See Bigham v. Talbot & Cropper, 51 Tex., 450, for statement. After the reversal appellees filed their first amended original answer, to wit, February 9, 1880, and on the same day took judgment by default. Upon appeal, it was held that the amendment set up a new cause of action, and that it was necessary to have service upon Bigham, and the cause was again reversed and remanded. On September 3, 1883, appellees filed their second original petition, reasserting the cause of action asserted in their original petition, with elaborate allegations as to their intention in filing the first amended petition.
Appellant specially excepted to the amended petition, upon the ground that the cause of action therein asserted appeared from the allegations to be barred; this was overruled, etc. He also answered by general denial, etc.
Verdict and judgment was against Bigham, and he again appealed.
The testimony of the auditor of the treasury department was, over objection, admitted, to show that he was the custodian of the records of that office, and what those records contained, no certified copy from the records being offered in evidence.
Vardeman & Atkinson, for appellant, on limitation, cited: Williams v. Randon, 10 Tex., 77;Erskine v. Wilson, 20 Tex., 80; Rule 14 for District Courts, 47 Tex., 619;Ayres v. Cayce, 10 Tex., 107;Henderson v. Kissam, 8 Tex., 46;Smith v. McGaughey, 13 Tex., 463;Pridgin v. Strickland, 8 Tex., 427;Evans v. Mills, 16 Tex., 199;Hopkins v. Wright, 17 Tex., 37;Irvine v. Bastrop, 32 Tex., 485;Bigham v. Talbot, 51 Tex., 450; R. S., arts. 13, 17.
Dudley G. Wooten and G. R. Freeman, for appellees, on limitation, cited: Killebrew v. Stockdale, 51 Tex., 529;Lee v. Boutwell, 44 Tex., 152;Garrett v. Muller, 37 Tex., 589;Hollis v. Chapman, 36 Tex., 1;Hill v. Clay, 26 Tex., 650;Becton v. Alexander, 27 Tex., 659;Thouvenin v. Lea, 26 Tex., 612.
This is the third appearance of this case before the supreme court, and each time upon new pleadings by the appellees. They first sued upon the Woodburn contract, as the assignees thereof, claiming a performance upon their part with all its terms. After the case was first reversed and remanded, appellees on, to wit, February 9, 1880, filed their first original amended petition, by which they declared alone upon a contract made by and between appellant and appellees. On the second appeal, it was held that this amended petition set up a new cause of action. Thereafter, on the 3d day of September, 1883, appellees filed their second amended original petition, in which they sue upon the Woodburn contract as the assignees thereof, claiming, as in the original petition, a compliance upon their part with all its terms, and a failure and refusal upon the part of appellant to pay the amounts due thereon. They also alleged that the Woodburn contract and the several successive assignments and transfers of the same, and attending agreements, were made by and between all the parties at interest, including appellant.
To this last amended petition appellant excepted specially upon the ground that the cause of action therein asserted was, by the affirmative allegations in the amended petition contained, shown to be barred by limitation.
This special exception was by the court overruled and the point saved by bill, and that ruling is now urged as erroneous.
As shown by the amended petition the Woodburn contract was made April 10, 1874; that it was assigned by Woodburn to Overstreet and Talbot, June 18, 1874; that in August, 1874, Overstreet sold and assigned his interest in the contract to appellees.
On the 30th day of June, 1875, the term for carrying the mail as provided for by the Woodburn contract expired; and it is claimed that the money was due to appellees within a reasonable time thereafter.
Now if, as claimed by appellant, the second amended petition asserted a new cause of action,...
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