Matossy v. Frosh

• Citation: 9 Tex. 610
• Parties: MATOSSY v. FROSH.
• Decision Date: 01 January 1853
• Court: Texas Supreme Court

9 Tex. 610

MATOSSY

v.FROSH.

Supreme Court of Texas.

1853.

There must be a period in the progress of a cause beyond which it will be within the discretion of the court to refuse leave to amend the pleadings. But where the court has permitted an amendment to be filed, which does not appear to have affected injuriously any right of the opposing party, its allowance will not afford a ground for reversing the judgment, although it might, coming in at so late a period, have been rightly refused.

The rule as to the application of payments recognized. (Note 109.)

Where the creditor entered the due bill of his debtor as an item of account, and credited payments upon account, without particular application, having sued upon the note, the defendant pleaded the payments, to which the plaintiff replied that the defendant was indebted to him upon book account upon which the payments had been credited; the payments exceeded the book account proper: Held, That the plaintiff was entitled to recover the balance due on the note, after deducting the excess of the payments beyond the other items of the account.

The plea of payment standing alone admits that a cause of action existed, and imposes upon the defendant the burden of proving the payment, but does not dispense with the production of the cause of action if a promissory note.

The statute which dispenses with proof of the execution of a note, unless the signature of the maker be denied under oath, does not dispense with its production under the general denial. (Note 110.)

Where the petition contains a copy of the note sued on and the defendant pleads payment without a general denial or other plea impeaching its validity, objection cannot be made at the trial, when the note is offered in evidence, that it has been altered since its execution, there being no variance between it and the copy.

Error from Galveston. The appellee brought suit against the appellant on a promissory note for $158.15, and interest, and appended to his petition a copy of the note. The defendant pleaded certain payments and in reconvention.

After the case was called for trial the plaintiff, by leave of the court, the defendant objecting, amended his petition, alleging, in substance, that the defendant was indebted to him on an account, besides his indebtedness on the note sued on; that the payments pleaded had been credited on the account, and that the note remained unpaid.

The plaintiff gave the note in evidence, and the defendant thereupon introduced the book-keeper of the plaintiff, who testified that the note was drawn by himself, and was signed and delivered to him by the defendant, and that it had been since altered by interlining, in a different handwriting, the words “or order” in the body of the note. Whereupon the defendant moved the court to exclude the note from the jury, which the court refused. The plaintiff's account, showing the entries in his book, was produced, from which it appeared that the note constituted an item in the charges. The payments were entered by the book-keeper as credits, and their sum, which exceeded the book account proper, was deducted by him from the sum of the account and note, leaving a balance in favor of the plaintiff of $107.15, not computing interest on the note. For this balance there was a verdict and judgment for the plaintiff.

The defendant asked the court to instruct the jury, 1st. That if the note had been altered since it was signed and delivered, without the consent of the maker, they must find for the defendant.

2d. That if the payments were made when the defendant owed the plaintiff upon both the note and account, and no appropriation of the payments was made by either party at the time, they must apply the payments to the note, which drew interest, and not to the account. Which instructions the court refused.

W. Alexander, for plaintiff in error.

A. P. Thompson, for defendant in error.

WHEELER, J.

The amendment of the petition was admissible by way of replication to the plea of payment. Amendments should be made in such time as not to operate a surprise to the opposite party, or unreasonably to delay the trial. There must be a limit to the right of amendment--a period in the progress of calls--beyond which it will be within the discretion of the court to refuse or allow amendments as may seem most to accord with the rights of the parties respectively and the ends of substantial justice. But where, as in this case, the court has exercised its discretion in permitting an amendment which does not appear to have affected injuriously any right of the opposing party, though it might, perhaps, coming in at so late a period, have been rightfully refused, its allowance will not afford a ground for reversing the judgment.

In respect to the appropriation of payments it is well settled, as a general rule, that the debtor has a right to appropriate payments, and if he does not, the creditor may. A debtor may control at will the application of his payments. Where, therefore, a debtor owing several debts makes a payment to his creditor he may apply the payment to whichever debt he pleases. But if he make no specific designation the creditor may...