Love v. Tims

• Decision Date: 31 December 1849
• Citation: 5 Tex. 343
• Court: Texas Supreme Court
• Parties: LOVE v. DOAK & TIMS.

5 Tex. 343

LOVE

v.DOAK & TIMS.

Supreme Court of Texas.

December Term, 1849.

In an action on an account for goods sold and delivered, the sale and delivery are the material facts on which depends the liability of the defendant, and they should be distinctly averred.

The entry of a charge in store accounts in the form “To merchandise, as per bill rendered, $215,70” is in contravention of the provisions of the act of limitations, and a recovery on such a charge would be inhibited by the spirit, if not the letter, of those provisions, were it even not liable to objections on general principles. (Note 64.)

That part of the third section of “the act of limitations” which suspended the act in case of the removal of the debtor from the county without ten days' previous advertisement of his intention to remove did not apply to the removal of debtors residing without the limits of the Republic or State.

The case of Snoddy v. Cage cited and confirmed as the settled law of the court.

The fact that the suit is by attachment, and that the defendant is not now and never has been a resident of the country cannot affect his liability. The statute operates on the cause of action without regard to the residence of the defendant, and whatever may be the mode of proceeding adopted for its recovery.

Appeal from Grayson. This suit was brought in the names of the appellees as copartners, trading as merchants, for the use and benefit of Josiah L. Doak, one of the said copartners. And it is alleged that the defendant is indebted to them in the sum of thousand four hundred and seventy-two dollars and forty-five cents, as will more fully appear by reference to the account of said Doak & Tims against the said defendant, prayed to be made a part of the petition; that the defendant promised to pay the same, but has neglected and refused so to do. It is alleged also that the defendant has personal property within the limits of the State which he is about to remove, and that, unless an attachment issue, the debt will probably be lost. The debt was contracted and the defendant now resides and always has resided beyond the limits of the State. The first item of the account is dated in 1840, and the last on the 30th July, 1844. The suit was commenced on the 24th January, 1848.

The defendant demurred to the petition on several grounds set forth in his plea. He also filed a plea of general denial, and one setting up the statute of limitations, and moved that the writ of attachment be quashed on the ground that the matters and things stated in the petition are not sworn to as required by the statute. He also filed an additional motion to quash the attachment on grounds specified in the motion. The demurrer and motions to quash were overruled, and, the cause being submitted to a jury, a verdict was found for the plaintiff.

The court instructed the jury that if they believed from the evidence that the account sued upon was contracted without the limits of the State, and that the defendant had up to the commencement of the action resided without the limits of the State, the statute of limitations was no bar to the action. An exception was taken to this charge, and it has been sent up with the record.

Everts, for appellant. The evidence shows that the goods were all sold before the 1st day of September, 1844. Three years and about five months had elapsed since the sale of the last article, and seven years and five months had elapsed before the commencement of the suit since the sale of the first article mentioned in the bill of particulars. The statute of limitations of two years is pleaded. The plaintiffs having sought a remedy under our laws, they must be governed by them; and as they have not brought themselves within any of the exceptions of the statute of limitations so as to take this case out of its operation, the case of Coles v. Kelsey (2 Tex. R., 541) and the rules there laid down, are thought to be in point and decisive of the question on the statute of limitations.

Trimble, for appellee.

The petition shows that Love, the defendant, at the time of filing the petition, was a citizen of the Choctaw Nation, and that the indebtedness accrued out of the State of Texas, wherefore the statute of limitations cannot apply to him, and the debt is not barred.

The statute can have no extraterritorial influence. The Legislature never intended that it should. This is manifest from the twenty-second section of the act, which withholds its protecting influence from those who are without the limits of the State. (Acts 1841, p. 170.) The principle that the statute of a State can have no influence on those who are without its limits, either for protection or responsibility, until they place themselves within its limits in person, or by holding property therein, is too well settled to admit of discussion; and no one ought to be permitted to claim a protection under the laws of a State to which he acknowledges no allegiance, and the statutes of which are not to him a rule of civil conduct. (Towns v. Bardwell, 1 Stew. & Port. R., 36; Ruggles v. Keeler, 3 Johns. R., 263;7 Mass. R., 515;14 Id., 203.)

HEMPHILL, Ch. J.

The grounds of the demurrer to the petition are certainly plausible if not entirely sound. The pleader seems to have attempted condensation in his statement of the cause of action, and this is much to be commended; but he has omitted an important averment and inserted others not so material. In an action on an account for goods and wares sold and delivered, the sale and delivery are the material facts on which depends the liability of the defendant, and they should...