Dwight v. Matthews

• Decision Date: 13 February 1901
• Citation: 60 S.W. 805
• Parties: DWIGHT et al. v. MATTHEWS et al.
• Court: Texas Court of Appeals

60 S.W. 805

DWIGHT et al. v. MATTHEWS et al.

Court of Civil Appeals of Texas.

February 13, 1901.

Appeal from district court, Runnels county; J. O. Woodward, Judge.

Action by Dwight, Skinner & Co. against Matthews, Miller & Co. From a judgment in defendants' favor, plaintiffs appeal. Affirmed.

Harris & Smith and W. W. King, for appellants. John I. Guion and R. B. Truly, for appellees.

FISHER, C. J.

The appellants, who were plaintiffs below, brought this suit against defendants, who are appellees herein, for $1,198.90, balance due for money advanced by them to the appellees. The defendants presented a general demurrer and special demurrer pleading the statute of limitation of two years to plaintiffs' cause of action, which were sustained, and, the plaintiffs declining further to amend, their suit was dismissed, from which this appeal is taken.

The plaintiffs' first amended original petition is as follows:

"Come now the plaintiffs in the above styled and numbered cause, and, leave of the court first asked and obtained, file this, their first amended original petition, in lieu of their original petition heretofore filed herein, to wit, on 10th February, 1897, and represent: That plaintiffs, Dwight, Skinner & Co., are a mercantile firm doing business in the city of Hartford, state of Connecticut, and are now, and have been for many years past, engaged in the business of selling wool upon commission, said firm being composed of Drayton Hillyer, Henry C. Dwight, and Wm. C. Skinner, all of whom reside in the city of Hartford, county of Hartford, state of Connecticut, complaining of defendants, Matthews, Miller & Co., a firm doing a mercantile business in the town of Ballinger, county of Runnels, state of Texas, and of the individuals who compose said firm, to wit, A. Matthews, who resides in the county of Coryell, state of Texas, D. M. Baker, J. B. Wilmeth, W. E. Allen, and F. C. Miller, who reside in the county of Runnels, state of Texas, W. S. Davis, who resides in Tarrant county, state of Texas, and Y. W. McNeil, who resides in Fannin county, state of Texas. That heretofore, to wit, on the 8th day of June, 1893, the defendants, for value received of plaintiffs, drew an order in writing under the hands and firm name directed to plaintiffs, and thereby requested them to pay on demand a certain draft herein copied, in substance as follows, to wit:

                "`$4,842.80. First National Bank of Ballinger
                  "`One Lot 200
                       "`Ballinger, Texas, June 8th, 1893
                

"`Pay to the order of First National Bank of Ballinger forty-eight hundred and forty two dollars and eighty cents.

                                "`Matthews, Miller & Co
                

"`To Dwight, Skinner & Co., Hartford, Conn.

"`Paid June 14th, 1893. Dwight, Skinner & Co.'

"Indorsements:

"`For collection and credit of the First National Bank, Ballinger, Texas. D. M. Baker, Cashier.

"`No. 18,665.

"`Pay Farmers' & Merchants' Nat'l Bank of Hartford, Conn., or order, for collection for account of the Hanover Nat'l Bank of New York. Jas. M. Donald, Cashier.'

"The said draft was duly presented to plaintiffs by the holder thereof, and was by plaintiffs paid on the 14th day of June, 1893. That at the time of drawing said draft, the presentation and payment of same as aforesaid, plaintiffs had no funds or effects in their possession belonging to defendants, or to either of them, whereby the defendants became liable, promised, and bound themselves to pay to plaintiffs the said sum of money in the said draft specified, together with six per cent. interest per annum thereon from the 14th day of June, 1893. That on various and sundry dates between the 3d day of July, 1893, and the 6th day of March, 1895, plaintiffs received at their said place of business, on consignment from the defendants, to sell on commission, various and sundry lots of wool, which were duly sold by plaintiffs in pursuance of their regular course of business; and the net proceeds...