Duggan v. Cole
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 381 |
| Parties | THOMAS H. DUGGAN v. JAMES COLE |
| Court | Texas Supreme Court |
Appeal from Travis County.
A record which was not sent up with or certified as a part of the transcript of the cause before this court, ought not to be noticed for any purpose, in the adjudication of the cause in this court. [11 Tex. 39;28 Tex. 263.]
When the defendant sets up the statute of limitations as a defense, the burthen of proof is on him to show that the action was barred at the time of commencing the suit.1
A second verdict will not be set aside as being contrary to or unsupported by the evidence, after a motion for a new trial, upon that ground, has been refused in the court below, notwithstanding this court cannot perceive upon what evidence the jury found their verdict.
The transcript of the record in this case presents the following pleadings and evidence:
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¦“JAMES COLE ¦)¦ ¦
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¦VS. ¦)¦Travis District Court, Fall Term, '47. ¦
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¦THOS. H. DUGGAN.¦)¦ ¦
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The amended petition filed by leave of the court and with the assent of all parties, and to go in this cause in the place and stead of the original petition now withdrawn. The said petitioner makes known to your honor, as before stated, that the said defendant, in the year 1839, was indebted to him justly in a large sum of money, to wit: in the sum of eleven hundred and sixty-one dollars and eighty-one cents, for money paid out and advanced to the use and benefit of the said defendant, and at his special instance and request; and also for the sum of eleven hundred and sixty-one dollars and eighty-one cents, loaned money, and for work and labor, care and attention to the business of the defendant by said plaintiff, and for the expenses, care and attention of the plaintiff in bringing out the aged, infirm and penniless father of the defendant to this country at the request of said defendant, as the same will appear by the account herewith filed and prayed to be taken as a part of this petition. He prays that said defendant answer this petition, and that, on the hearing, your honor would grant him a judgment for his account, damages and costs, and he will ever pray, etc.
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¦(Signed) LEE & GILLESPIE. ¦¦
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“Indorsed,” Filed 7th October, 1847.
B. D. BASSFORD, Clerk.”
To this petition was appended as an exhibit an account dated “1839, May,” for groceries and other merchandise and for cash loaned, etc., amounting to $1,161.81.
The defendant at the fall term, 1857, of the court pleaded in answer to this petition as follows, first a denial, second in set-off, as follows: “And for farther answer said defendant says that said plaintiff is indebted to him in the sum of eleven hundred and sixty-one dollars for money advanced by him to said plaintiff, and for money received by said plaintiff for his, said defendant's, use, and for divers goods, wares and merchandise purchased for said defendant by said plaintiff and not delivered to said defendant previous to the commencement of this suit, the particulars of which are hereunto appended as a part of this answer, all of which he is ready to verify, wherefore he prays judgment against said plaintiff for said sum,” etc.
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¦“Particulars. James Cole to Thomas H. Duggan, Dr., 1839; to cash ¦ ¦
¦advanced you, said Cole, in Mississippi, previous to your departure¦$575.00 ¦
¦for New Orleans and Texas, in 1839, and not accounted for by you ¦ ¦
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¦“To cash advanced you in New Orleans by E. Duggan, on my account, ¦161.00 ¦
¦in 1839, and not accounted for ¦ ¦
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¦“To cash advanced you in Texas, 1839, to purchase land which you ¦300.00 ¦
¦did not purchase nor account for the money ¦ ¦
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¦“To merchandise purchased for me and delivered to you and not ¦125.00 ¦
¦accounted for by you ¦ ¦
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¦ ¦$1,161.00¦
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And thirdly, the statute of limitations, as follows:
“And for further answer in this behalf the said defendant saith, that if said plaintiff ever had any cause of action against this defendant the same did not accrue within four years before the filing said petition and bringing this suit, and this he is ready to verify, wherefore he prays judgment, etc.
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¦(Signed)¦WEBB, for Defendant.” ¦
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At the trial the plaintiff proved by J. Cole, Jr., that in 1839 he was employed by defendant to haul up a load of goods from Houston to Bastrop county; that the goods were received from a store in Houston upon the plaintiff's order, and consisted of two hogsheads of bacon, two or three barrels of flour, one barrel of sugar, one sack of coffee, four kegs nails, a lot of castings and some boxes and trunks; the boxes and trunks were marked J. C.; that W. Terrell also hauled up a load of goods, but does not know where he got them, and that the defendant borrowed a hundred dollars from the plaintiff to pay for hauling up the goods. The plaintiff also proved by Matthew Moss that the defendant Duggan told him, witness, that Mr. Cole had loaned him two hundred dollars to pay for a pair of match horses which he, Duggan, had with him at the time, and that Cole laid in provisions consisting of bacon, flour, sugar and coffee for one year for his, Duggan's, family, and that he did not know what he would have done had it not been for his cousin James. Here the plaintiff rested his case.
The defendant then proved by Henry Terrell that he knew the plaintiff, Cole, in Mississippi in the early part of the year 1839; that he was in very bad health, and his appearance and situation led witness to believe that he was very poor; that he, Cole, was staying with Duggan; that Duggan bought clothes for Cole and gave them to him, as he believed, from motives of charity, and did not charge him for board; that Cole bought goods for Duggan in New Orleans, in 1839, but from what Cole said after his arrival on the Colorado, in June, 1838, and from witness' own knowledge of the transaction, he did not believe Duggan was indebted to Cole at the commencement of this suit; that he was acquainted with Edward Duggan, the father of the defendant; knew that he came from Mississippi to Texas with the plaintiff, Cole, in 1839, and heard both him and Cole say that he, E. Duggan, had advanced to Cole in New Orleans one hundred and sixty-one dollars on account of his son Thomas, the defendant; that he, witness, saw Thomas Duggan, the defendant, give to the plaintiff three hundred dollars in June, 1831, to purchase for him, Duggan, a tract of land in Bastrop county; that plaintiff left the house of witness with the money, promising to return in a short time and assist the defendant in removing to the land to be purchased; that plaintiff did not return at all; witness did not know whether plaintiff ever returned the money or not, but was under the impression he did not; witness hauled up part of a load of goods for Duggan; Wm. Austin hauled part of a load in the same wagon; James Cole, Jr., hauled up two casks of bacon and some other articles. A number of the goods charged were missing, more than one hundred dollars' worth, and Cole said they must have been lost in Galveston or on the way from Galveston to Houston. Witness further stated that a part of the load hauled up by James Cole, Jr., were goods purchased by the plaintiff for the defendant in New Orleans, and a part of the load consisted of goods purchased by the defendant in Houston; the bacon constituted the greater portion of the weight of the load.
James Pierce, a witness for the defendant, testified that in Jefferson county, Mississippi, in May, 1839, he saw the defendant hand to the plaintiff a sum of money, between five hundred and fifty and six hundred dollars, with a request that he, Cole, would lay it out for goods for him, Duggan, in New Orleans, according to a memorandum handed him with the money.
William Austin, also a witness for the defendant, testified that he knew the plaintiff in the early part of the year 1839; he was in very bad health and staying at the house of the defendant; did not positively know as to his pecuniary circumstances, but from what he saw and knew, thought them very limited. His board was given him by the defendant; heard plaintiff say that Edward Duggan advanced him money in New Orleans, but does not recollect the amount; Henry Terrell hauled up a load of goods; witness part of a load, and James Cole, Jr., part of a load, consisting principally of two hogsheads of bacon; knows that part of the goods were missing; thinks upwards of a hundred dollars worth; plaintiff stated they were lost either at Galveston or on the way to Houston. From what he, witness, heard plaintiff say, and from his own knowledge of the transaction between plaintiff and defendant, he, witness, did not believe that defendant owed plaintiff one cent at the commencement of this suit.
The plaintiff then offered as rebutting testimony a paper in the following words: ...
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