Kampmann v. Williams
| Decision Date | 01 May 1888 |
| Parties | KAMPMANN <I>et al.</I> v. WILLIAMS <I>et al.</I> |
| Court | Texas Supreme Court |
Action by Williams & Russell against G. A. Kampmann & Co. on the following written instrument: The draft was accepted by the drawee, Lambert, June 23, 1884, and was indorsed by Gus. A. Kampmann & Co. There was a judgment for plaintiff, and defendants appeal.
Winter & Altgelt, for appellants. Jas. W. Stephenson, for appellees.
The petition alleges that the plaintiffs are the owners and holders of the draft, and that it became due and payable on the 5th of December, 1884, by reason of the fact that demand for payment was made on that day. The other allegations were appropriate to the relief sought. Defendants excepted to this petition substantially for the reasons that the instrument sued on had not been protested and notice given as required by law, and also because suit was not brought to the first term of the court after the right of action accrued, or to the second term, showing good cause for not bringing suit to the first term. Plaintiffs, in their supplemental petition, allege, by way of excuse for not using due diligence to collect the draft, that defendant Boelhauwe, of the firm of G. A. Kampmann & Co., represented to plaintiffs that the draft was to be held by plaintiffs for collection, as a favor to Boelhauwe, and that he never at any time instructed plaintiff to protest or institute suit on it. All civil jurisdiction was by an act of the legislature approved February 25, 1881, taken from the county court of Bexar county, and given to the district court, and for that reason it had jurisdiction of the matter in controversy; otherwise it would not, as the amount of the debt, exclusive of interest, does not exceed the sum of $500. An allegation of the petition that the debt became due on the 5th day of December, demand of payment having been made on that day, would not have the effect to prevent the draft from becoming payable until that time; but, the undertaking being payable on demand, it became due on the 23d of June, the date of acceptance, or as soon thereafter as demand of payment could reasonably have been made. 1 Daniel, Neg. Inst. p. 542, § 605; Cook v. Cook, 19 Tex. 437. This instrument was not negotiable; and there was no necessity for protest to fix the liability of indorsers under the law-merchant.
It is provided, however, by articles 267 and 268 of the Revised Statutes...
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