Laredo Electric L. & M. Co. v. United States Electric L. Co.

• Decision Date: 11 April 1894
• Citation: 26 S.W. 310
• Parties: LAREDO ELECTRIC LIGHT & MACH. CO. v. UNITED STATES ELECTRIC LIGHTING CO.
• Court: Texas Court of Appeals

26 S.W. 310

LAREDO ELECTRIC LIGHT & MACH. CO. v. UNITED STATES ELECTRIC LIGHTING CO.

Court of Civil Appeals of Texas.

April 11, 1894.

Appeal from district court, Webb county; A. L. McLane, Judge.

Action by the United States Electric Lighting Company against the Laredo Electric Light & Machine Company. Plaintiff obtained judgment. Defendant appeals. Reversed.

Winslow & Thompson, for appellant. Nicholson, Dodd & Mullally, for appellee.

JAMES, C. J.

The suit was begun by appellee to recover of appellant the reasonable value of certain articles alleged to have been shipped and delivered to appellant upon a written request or order of appellant, dated April 8, 1890, for the shipment of same. The petition referred to an annexed sworn account for the specific articles and values. It appears from the pleading that more than two years had elapsed after delivery before the suit was commenced. By a demurrer, defendant claimed that the petition showed the demand was barred by the statute of two years;¹ also, by a plea. There was also a demurrer claiming that the account showed that the Westinghouse Electric Company was the lessee of plaintiff, and owned the claim; and a general denial. The demurrers were overruled. The written order for the goods was as follows: "Laredo, Texas, April 8th, 1890. U. S. Electric Lighting Co. — Gents: I returned here most unexpectedly. I find a great demand for fan motors, while in fact we have none on hand. But two of those I ordered of you ever came to hand. I write to know if you have sent any more; if not please telegraph the Laredo Electric Light Co. On receipt of this you can send us six by express and twelve by Morgan S. S. line at once. I will start for New York next week myself and lose no time in calling on you. Since we have to put on a day current with automatic engine to run these things we must have enough to make them pay. I have the Perret C. & C. Ricker Croker Wheeler and Detroit, but prefer yours if I can get them promptly. Yours, A. C. Hunt, Mgr." The evidence sufficiently shows that the motors were delivered in compliance with this order, and the value of the same. The suit, however, was not filed until April 12, 1893, and limitation of two years was set up by demurrer and plea. It is our conclusion that the statute of two years was not applicable. Appellee cites the following cases: Page v. Payne, 41 Tex. 143, and Sublett v. McKinney, 19 Tex. 438. The former of these cases was precisely the one before us, except that the order contained an express promise to pay for the goods ordered. There is no difference, in principle, between the two cases, however, as the law will imply from the writing a promise to pay upon proof of the delivery of the goods ordered; and this view is reinforced by what is held in Sublett v. McKinney.

With reference to the sworn account, it was not such as authorized its use as proof of debt against defendant. It does not purport to be a claim against the defendant, but against the Laredo Electric Light Company, both in the caption to the claim and in the affidavit thereto. The court could not presume that the defendant and the Laredo Electric Light Company (being different names, indicating different corporations) were one and the same. There was no error, however, in overruling this exception, because, whether the account was available as a sworn account under the statute or not, the petition otherwise sufficiently stated a cause of action. The account aided the petition, and was a part of it, so far as referred to for that purpose, and plaintiff could prove his case without claiming any benefit from the sworn account. The question of the sufficiency of the account as proof of the debt would not arise unless it was sought to be availed of in the statutory manner. It was shown by the testimony of J. F. Mullally that the ledger of defendant showed that plaintiff had been credited with all the items shown on the account, and that there were no debts; that 13 of the motors described in the account, and consequently in the ledger, were then on defendant's premises, and, from the admissions of defendant's manager, that others of those mentioned in the account had been placed by defendant in various places in the town of Laredo; that the defendant, the Laredo Electric Light & Machine Company, was not identical with the Laredo Electric Light Company, but on the contrary the...