McCamant v. Batsell

• Decision Date: 01 May 1883
• Docket Number: Case No. 4730.
• Citation: 59 Tex. 363
• Court: Texas Supreme Court
• Parties: J. D. MCCAMANT ET AL. v. C. W. BATSELL.

59 Tex. 363

J. D. MCCAMANT ET AL.

v.C. W. BATSELL.

Case No. 4730.

Supreme Court of Texas.

May 1, 1883.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

Suit instituted on the 25th day of June, 1881, against John D. McCamant, one of the appellants, to recover $525.95, paid by appellee as surety to Tom Randolph, on a note held by him against McCamant and appellee as surety; also the sum of $547.74, paid by appellee as surety of J. D. McCamant to Kirkpatrick & Co., and asking for a writ of attachment.

On the 25th day of June, 1881, a writ of attachment was issued, and levied the same day on the land in controversy. On the 28th day of June, 1881, T. J. McCamant, by J. D. McCamant, attorney in fact, sold the land to J. W. Gray. On the 16th day of July, 1881, plaintiff filed an amended petition, making J. W. Gray and T. J. McCamant parties to the suit, alleging fraud in sale of land by T. J. McCamant to J. W. Gray, and prayed cancellation of the deed.

Answer by a general denial.

J. W. Gray filed an answer containing general and special exceptions, general denial, plea of purchase in good faith without notice of any fraud, and alleging that T. J. McCamant, the party under whom he claimed, purchased the land long anterior to the accrual of appellee's claim.

J. D. McCamant filed amended answer, containing general demurrer and general denial; plea of partnership between himself and appellee in the transactions declared on in the petition; plea of partial payment, and alleging that the transactions out of which grew his pretended liabilities to appellee was a dealing or gambling in cotton futures, and therefore contrary to law, and could not support an action.

Appellee filed a motion to strike out so much of amended answer of McCamant as set up the illegality of consideration, because it came too late.

Motion was sustained by the court, and the portion of said answer attacking the consideration was stricken out, appellant excepting.

Appellee introduced in evidence a note payable to Tom Randolph and the verified account stated in opinion.

Appellee then read the writ of attachment of date the 25th day of June, 1881, commanding the seizure of property of J. D. McCamant in Tarrant county; the sheriff's return showing seizure of land in controversy on same day; power of attorney from T. J. McCamant to J. D. McCamant of date the 28th day of October, 1878; also deed of T. J. McCamant by J. D. McCamant to J. W. Gray of date the 28th of June, 1881, for the land.

Appellee then read deposition of T. J. McCamant, who testified that he was brother of J. D. McCamant; that the latter made him a deed to some land near Fort Worth, Texas; that he did not purchase the land, but that there were some matters between him and J. D. McCamant, “and he made me the deed, and said that perhaps I could sell the land to some emigrant coming to Texas or trade it for land here in Virginia that would suit me. I did not purchase it or pay anything for it, and did not know the deed was going to be made until it was made and sent to me in Virginia, where I then resided. I suppose the deed conveyed the land described in third interrogatory. We had some correspondence in reference to my trading the land. The deed was sent to me in the fall of 1876, and I kept it a year or more, and, not being able to sell, I sent it to J. D. McCamant, and also sent him a power of attorney authorizing him to sell it. I did not claim or control the land only for the purpose of trading it. I know nothing of the solvency of J. D. McCamant; he has never reported the sale of the land to me or accounted for the proceeds, and is under no obligation to do so.”

Appellant offered no evidence.

The court rendered judgment for amount claimed, foreclosed attachment lien on the land, and canceled the deeds under which Gray claimed the land; also the power of attorney.

M. D. Priest, for appellant.

Hare & Head, for appellee, on the defense based on “gambling transaction,” cited De Leon v. Trevino, 49 Tex., 88;Mills v. Johnson, 23 Tex., 308; Ford v. Keith, 1 Mass., 138; Johnson v. Johnson, 11 Mass., 359; Texas Pleading and Practice (Sayles & Bassett), 25, 26.

Finley & Pasco, for appellee Gray.

STAYTON, ASSOCIATE JUSTICE.

The court did not err in sustaining the exception to so much of defendant's answer as set up that the note and other indebtedness which the appellee claimed to have paid as surety for the defendant McCamant was based upon a “gambling transaction” by the defendant in cotton futures.

The answer in this respect does not show what the real transaction was, nor that the plaintiff had such connection with it as to make it an unlawful transaction between them, even if such was its character between McCamant and Randolph and Kirkpatrick & Co. It states mere conclusions of law and not facts.

The suit was brought to recover certain sums of money which the plaintiff claimed that he had paid as surety to Randolph on a note which was the joint and several note of himself and McCamant, and upon the face of which they both appear to be principals. The residue was alleged to have been paid to Kirkpatrick & Co. as surety for McCamant, but the character of the indebtedness, whether by note, bill, or otherwise, is not made to appear either in the pleadings or evidence.

The sums of money which the plaintiff claimed to have paid for McCamant as his surety were stated in the form of an account, as follows:

+-----------------------------------------------------------------------------+
                ¦T. D. MCCAMANT, To C. W. BATSELL, Dr.                                        ¦
                +-----------------------------------------------------------------------------¦
                ¦June 24, 1881. To amount paid as security for you on note to Tom    ¦$525 95 ¦
                ¦Randolph, cash                                                      ¦        ¦
                +--------------------------------------------------------------------+--------¦
                ¦June 10, 1881. To amount paid as security for you to Kirkpatrick &  ¦547 74  ¦
                ¦Co                                                                  ¦        ¦
                +--------------------------------------------------------------------+--------¦
                ¦Total                                                               ¦$1,073  ¦
                ¦                                                                    ¦69      ¦
                +-----------------------------------------------------------------------------+
                

This was sworn to as open accounts are permitted to be under art. 2266, R. S.

The third assignment of errors is:

“The court erred in admitting as evidence the sworn account of plaintiff, because:

1st. There was no proof to establish said account, except the ex parte affidavit of plaintiff.

2d. While the items in said account are proper subjects of an allegation in assumpsit, they cannot be pleaded as matter of account, and thereby dispense with proof of the original indebtedness of J. D. McCamant, the suretyship of plaintiff, and the payment of the same by plaintiff.

3d. Said items are not the character of items contemplated by the statute on the subject of sworn accounts, which statute contemplates items of trade and merchandise usually changing hands among citizens, and does not contemplate transactions where liability arises by implication of law from the payment of the debt of the principal by the surety, nor in any case where the liability is a question of law, and not of direct promise, express or implied.”

On the trial the court permitted the statement of indebtedness above set out, together with a note executed to Randolph by McCamant and Batsell, the payment of which constituted the first item in the statement, to be read in evidence, over the objections of the defendants, which were substantially the same as the assignment of error, to which ruling a bill of exceptions was taken. There was no other evidence in the case to establish the indebtedness of McCamant to Batsell.

The Revised Statutes provide that answers setting up certain defenses shall be verified by affidavit, and among others it provides “that an account which is the foundation of the plaintiff's action, and supported by an affidavit, is not just,” must be denied by an answer so verified, and that “in such case the answer shall set forth the items and particulars which are unjust.” R. S., 1265. This statute regulates the manner of pleading, but does not relieve a plaintiff from the necessity of proving his case by competent evidence.

Art. 2266, R. S., is as follows: “When any action or defense is founded upon an open account, supported by the affidavit of the party, his agent or attorney, taken before some officer authorized to administer oaths, to the effect that such account is, within the knowledge of the affiant, just and true, that it is due, and that all just and lawful offsets, payment and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the defendant shall, at least one day before the trial, file a written denial under oath, stating that such account is not just or true, in whole or in part, and if in part only, stating the items...