Lewis v. Alexander

• Decision Date: 01 January 1879
• Citation: 51 Tex. 578
• Parties: CHARLES LEWIS v. C. C. ALEXANDER ET AL.
• Court: Texas Supreme Court

51 Tex. 578

CHARLES LEWIS

v.C. C. ALEXANDER ET AL.

Supreme Court of Texas.

1879.

ERROR from Fannin. Tried below before the Hon. R. R. Gaines.

The history of the proceedings in this case will be found in 34 Tex., 608, 609, 691, 692, and in the opinion of Chief Justice Roberts in 47 Tex., 482. After the case was last remanded, the plaintiff filed a petition which was designated as “in lieu of and in substitution for the original and all the amended petitions heretofore filed in this cause.” A general demurrer and special demurrers were filed by defendants, which were sustained in a judgment which declared, in general terms, that, on hearing the exceptions of defendants to plaintiff's amended original petition, “the law is for the defendants,” and after stating that plaintiff declined to amend, proceeded to adjudge costs, &c. From this judgment Lewis appealed. Every point decided is apparent from the opinion, in connection with the former history of the case contained in 34 and 47 Texas.

H. D. & F. H. Prendergast, for appellant.

I. The exporting cotton to Mexico and the importing cotton cards from Mexico under contract with the Military Board of Texas was not in violation of the laws of the United States in May, 1865.

The petition alleges that the firm of A. M. & C. C. Alexander were, in 1864 and 1865, the owners of some 4,000 bales of cotton in Texas, Louisiana, and the Indian Territory, which said cotton they were, in 1864 and 1865, transporting by wagons to Mexico and other markets for sale.

The petition further states that, in furtherance of the enterprise and to aid in its execution, A. M. Alexander obtained from the Military Board then existing in the State of Texas permits to ship said cotton to Mexico.

In the contract between W. B. Knox and the Alexanders, which contract is referred to in the petition, it is recited that the contract between the Alexanders and the Military Board was for the purpose of transporting cotton to Mexico and importing cotton cards for said Military Board, and it is recited that said contract with the Military Board was dated October 10, 1864. (Kottwitz v. Alexander's Executors, 34 Tex., 710; Act of Congress of June 30, 1864, sec. 179; Bright. Dig., arts. 294, 301, secs. 177, 180.)

II. If the contract of the Alexanders with the Military Board to export cotton to Mexico and import cotton cards was illegal, it does not appear from the plaintiff's petition that the money called for in the draft sued on was loaned by plaintiff for the purpose of furthering said illegal enterprise, and said loan was not illegal.

It is stated in the petition that plaintiff loaned the money to A. M. & C. C. Alexander, and it is also stated that the firm of A. M. & C. C. Alexander owned at the date of said draft or note some 4,000 bales of cotton, and that it was necessary for said firm to borrow said money to pay expenses in moving said cotton to Matamoras and other points.

It is stated in said amended original petition that the money borrowed and used by said A. M. Alexander from the plaintiff, for which the draft sued on was given, was necessary to carry out the original partnership enterprise of A. M. & C. C. Alexander, and that it was used by A. M. Alexander for the benefit of the said partnership.

It is not stated in said petition that plaintiff Lewis loaned said money in furtherance of said enterprise of exporting cotton to Mexico. (Bishop v. Honey, 34 Tex., 245;Kottwitz v. Alexander's Executors, 34 Tex., 710; Bowry v. Bennet, 1 Camp., 348, cited in Benjamin on Sales, secs. 507, 510; Hill v. Spear, 50 N. H., 253;Gaylord v. Soragen, 32 Vt., 110;Aiken v. Blaisdell, 41 Vt., 656;Adams v. Coulliard, 102 Mass., 167;Lowell v. Boston and Lowell Railroad Co., 23 Pick., 32; Benjamin on Sales, secs. 532, 538; 2 Kent's Comm., 466.)

E. M. Pease and Walton, Green & Hill, also for appellant, cited, as applicable to the first exception to plaintiff's petition, Brock v. Jones, 16 Tex., 465; Story on Agency, secs. 239, 244, 249-252, 260; Livermore on Agency, sec. 4, pp. 44, 46; Whart. on Agents and Agency, secs. 68, 72-74, 76, 83, 85, 87, 89, 135, 137, 174; 2 Kent's Comm., secs. 614-616; Watson v. Bigelow, 47 Mo., 414, 415;Bronson's Executor v. Chappell, 12 Wall., 683; Bish. on Cont., secs. 381-384; Add. on Cont., sec. 60.)

I. The court erred in sustaining the second exception of defendants to plaintiff's petition.

The pleading setting up said agreement as to survivorship fails to state whether the same was in writing or verbal, nor does it state its date or terms clearly and fully. (Collyer on Part., sec. 4.)

II. The court erred in sustaining the seventh exception to plaintiff's petition, as follows: “Said pleading sets up a contract with the Military Board of Texas, made with said firm, to export cotton from Texas to Mexico and import cotton cards for said Military Board, when war was existing between the United States and the Confederate States, when to export said cotton to Mexico was in violation of the revenue laws of the United States, and that this money was loaned by plaintiff in furtherance of said contract, and no cause of action can arise on such illegal transaction.” (Kottwitz v. Alexander's Executor, 34 Tex., 705, 710-713;De Leon v. Trevino, 49 Tex., 91-96.)

R. B. Semple and W. B. Wright, for appellees.

I. Where a defect is pointed out by demurrer or exception, and the plaintiff fails to cure that defect by amendment, the court must dismiss the cause. (Hughes v. Lane, 25 Tex., 365.)

II. To render a defendant liable on a note, it must be alleged and proven that he executed it himself, or authorized another to execute it. (Compton v. Stage Co., 25 Tex. Supp., 68; Paige v. Stone, 10 Metc., 160; Temple v. Pomroy, 4 Gray, 128;Insurance Co. v. McMillen, 24 Ohio St., 67.)

III. To allow plaintiff to show that there was an agreement between the parties varying the written articles of copartnership, he must show that he had knowledge of such agreement, and that the acts or declarations of the partners induced him to loan his money on the strength of such agreement. (Reber v. Col. Mach. Co., 12 Ohio St., 178.)

IV. In considering the scope of a demurrer, every allegation is to be taken most strongly against the pleader; and of the inconsistent allegations, that is to be taken which is most against his interest. (Snoddy v. Cage, 5 Tex., 116.)

V. Plaintiff alleges that the purpose of the partnership was to transport cotton to Mexico and other markets, for sale, during the war in 1864 and 1865; that the money for which the note was executed was loaned by plaintiff and used by said firm in their said business. The articles of copartnership show that the object of its organization was to carry out a contract with the Military Board of Texas, exporting cotton to Mexico and importing cotton cards for said Military Board; that plaintiff had constant dealings with said firm from its organization to its dissolution, and knew of its purpose.

That such facts prevented plaintiff from recovering on said note, see the following cases: Alexander v. Lewis, 47 Tex., 481;Texas v. White, 7 Wall., 734;Hanauer v. Doane, 12 Wall., 342;Whitis v. Polk, 36 Tex., 602;Converse v. Miller, 33 Tex., 216;Roquemore v. Alloway, 33 Tex., 461.

Hancock, West & North, also for appellees. [Their brief did not reach the reporters.]

BONNER, ASSOCIATE JUSTICE.

This is the third time this case has been before this court. (34 Tex., 608;47 Tex., 481.)

After it was remanded the last time, the plaintiff filed an amended original petition as a substitute for all his previous pleadings, in which he seems to have endeavored to obviate the objections to them suggested by the former opinion of the court.

To this the defendant filed a separate special demurrer and a general and even additional special demurrers.

On the trial below, the court, by a general judgment, sustained the demurrers without further designation; and the plaintiff refusing to amend, the cause was dismissed. From that judgment this appeal is prosecuted.

The assignment of error is, that the court erred in sustaining exceptions of defendants to plaintiff's petition.

As the consideration of the special demurrers will virtually involve that of the general demurrer, these will be disposed of in the order presented by counsel.

The separate special demurrer is, that the said amended original petition failed to comply with rule 13 of the District Courts, in not pointing out what instrument or instruments of pleadings it seeks to amend by said amendment, and failed to inform the court, or the parties to the suit, what pleadings appellant now relies on to establish his cause of action.

Whatever might be the effect of a judgment sustaining a motion to strike out an amendment because it did not designate with sufficient certainty the particular pleading sought to be amended, as required by rule 13 for the District Courts, we are of opinion that such failure would not be sufficient, of itself, to sustain a general judgment upon several demurrers to a pleading so amended.

The pleading complained of was an amended original petition, and by its terms “was in lieu of and in substitution for the original and all the amended petitions heretofore filed in this cause.”

Thus regarded, it was in the nature of a repleader under rule 29, in which the reason for such particular designation does not apply with the same force as when some one particular pleading is amended.

Good reasons exist, however, that in all amendments under the new rules the dates and description of the abandoned pleading should be given. This is illustrated by the case under consideration, as we cannot ascertain from the record as presented when this suit was instituted.

As important rights might in some cases be defeated by failure to observe the rules in this regard, it is suggested that the district judges should see that they are enforced.

The first special exception of defendants is, that said pleading fails to state...