Krueger v. Klinger

• Decision Date: 15 May 1895
• Parties: KRUEGER v. KLINGER.
• Court: Texas Court of Appeals

30 S.W. 1087

KRUEGER v. KLINGER.

Court of Civil Appeals of Texas.

May 15, 1895.

Appeal from district court, Comal county; Eugene Archer, Judge.

Action by William Klinger against Max Kreuger and another on a promissory note. From a judgment for plaintiff against both defendants, defendant Krueger appeals. Affirmed.

This suit was brought April 24, 1894, by appellee, on a note of appellant to M. Klinger or order, of date January 14, 1890, for the sum of $2,000, due two years after date, bearing 7½ per cent. interest per annum, and indorsed by the payee in blank to appellee. The petition alleges that it was so indorsed about the 15th of March, 1894, for a valuable consideration. The indorser was also made a party defendant. Defendant Krueger filed a plea in abatement to the jurisdiction of the court, claiming his privilege to be sued in Blanco county, the county of his residence, but this plea was waived, as stated in the judgment, and hence that issue is not before us. Krueger set up in his original answer that M. Klinger agreed, for a valuable consideration, to extend the time of payment to January 2, 1895. After announcing ready for trial, the court overruled plaintiff's exception to the answer to the effect that it did not show the extension was for a valuable consideration, but permitted defendant Krueger to file a trial amendment. The trial amendment states that it is filed for the purpose of covering defects in the original answer. It then sets up that "when the note first became due, to wit, on the 14th day of January, 1892, upon the payment of the interest on the same at the end of the year, defendant M. Klinger agreed to extend the same one year; that, again, on the 2d day of January, 1894, and before the note became due, the said M. Klinger, for a valuable consideration, to wit, the sum of $150, paid to him by the said Max Krueger, agreed, for and in consideration of said $150 so paid on the 2d day of January, 1894, to extend the time of payment of the principal of said note for another year; that the extension so given for the year aforesaid was for a valuable consideration, to wit, the payment in advance of the sum of $150 for the year 1894, and for the years 1892 and 1893 the additional sum of $10, at the time of each of said extensions of said note by defendant M. Klinger to said defendant Max Krueger." The plea was sworn to. The petition of plaintiff admits that Krueger had paid the interest on the note to February 1, 1894, and $900 on the principal "on the 6th day of March, 1894." Plaintiff, by supplemental petition, excepted to the trial amendment, upon the ground that, if it were true, it would not sustain the plea that the debt was not due before the suit was filed, and that it showed no consideration. The court sustained the exception. A jury was then impaneled, and "the testimony of the case entered into," and then defendant Krueger asked leave to file an amended trial amendment, which was refused by the court. The bill of exception shows that it was the intention of defendant to set out more definitely and specifically the agreement and consideration paid for extension of time, as set up in the original answer and the trial amendment. The court refused to allow defendant to read his trial amendment and that part of the original answer containing the allegations of the agreement and consideration for the extension of time. The refusal was upon the ground that exceptions to the trial amendment had been sustained, and it had been filed to cover defects in the original answer in regard to extension of time of payment of the note. The court instructed the jury to find for plaintiff for the amount due on the note, which had been read in evidence; and upon verdict for plaintiff for the balance due on the note, as shown on its face, and indorsed and admitted credits, judgment was rendered for the plaintiff against both defendants. Defendant Krueger has appealed and assigned errors.

L. Koeniger, L. H. Blevins, and F. J. Maier, for appellant. J. D. Guinn, for appellee.

COLLARD, J. (after stating the facts).

The court committed no error in refusing to allow defendant Krueger to amend his trial amendment. The trial had commenced before the jury, and evidence had been offered. It was then too late to amend the pleadings. Rev. St. art. 1192; Contreras v. Haynes, 61 Tex. 103. If defendant had offered to withdraw his announcement for the purpose of amending his plea, it would have been within the discretionary power of the court to grant the request. Whitehead v. Foley, 28 Tex. 10; Obert v. Landa, 59 Tex. 475.

There was no error in sustaining exceptions to the trial amendment, nor in refusing to allow it to be read, nor in refusing to allow defendant to read that portion of his original answer relating to the extension of time of payment of the note. The trial amendment showed no valuable consideration for the extension of time of payment of the note. The averment that an extension was granted for one year from the 14th day of January, 1892, upon payment of the interest due, shows that there was no consideration for the promise. If the averment is true that the note was then due, a payment on it would not constitute a valuable consideration. If the note were due, the right of the payee to payment of principal and interest could not be denied. Lane v. Scott, 57 Tex. 367; Gibson v. Irby, 17 Tex. 173. But if there had been a valid and binding agreement to extend the time for one year from the 14th day of January, 1892, the right to demand payment would only be postponed to the 14th day of January, 1893. After this time the note was due,...