McCamant v. McCamant

• Decision Date: 20 April 1918
• Docket Number: (No. 8856.)
• Citation: 203 S.W. 118
• Parties: McCAMANT v. McCAMANT.
• Court: Texas Court of Appeals

203 S.W. 118

McCAMANT v. McCAMANT.

(No. 8856.)

Court of Civil Appeals of Texas. Ft. Worth.

April 20, 1918.

Appeal from Tarrant County Court; Geo. E. Hosey, Judge.

Suit by R. L. McCamant against Minnie May McCamant. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 187 S. W. 1096.

Geo. N. Beakley, of El Paso, and Mercer, Wall & Rouer, of Ft. Worth, for appellant. McCart, Curtis & McCart, of Ft. Worth, for appellee.

CONNER, C. J.

As originally instituted, this suit was to enforce the collection of a certain note for $700 executed by J. W. and J. H. Woodward, dated January 14, 1910, due August 1, 1910, bearing interest at the rate of 8 per cent. from date, and providing 10 per cent. attorney's fees. The note was payable to Minnie May McCamant, community administratrix, and after maturity was so indorsed by her and delivered to appellee for a valuable consideration. As instituted, the suit was against the makers of the note and against Minnie May McCamant as indorser. At a succeeding term of the court judgment was rendered in favor of the plaintiff against the Woodwards and against Minnie May McCamant, but thereafter on appeal to this court the judgment was set aside, and the cause remanded, on the ground that the plaintiff had not alleged in his petition either compliance with or an excuse for noncompliance with article 579, Vernon's Sayles' Tex. Civ. Stats., which, so far as applicable here, reads:

"The holder of any * * * promissory note, assignable or negotiable by law, may secure and fix the liability of any drawer or indorser of such bill of exchange, and every indorser of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange, or against the maker of such promissory note, before the first term of the district or county court to which suit can be brought, after the right of action shall accrue; or by instituting suit before the second term of said court, after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued."

In an opinion by Mr. Justice Buck this court held that no cause of action as against Minnie May McCamant was presented in the plaintiff's petition, and hence that the petition was bad on general demurrer, inasmuch as it appeared therefrom that suit had not been instituted either at the first or second term of the court after the right of action against Minnie May McCamant accrued as required by the statute. See McCamant v. McCamant, 187 S. W. 1096.

After the cause was remanded in accordance with that opinion the plaintiff, R. L. McCamant, filed an amended petition in which he alleged substantially as before, and further, by way of excuse for not having sooner filed suit:

That J. W. and J. H. Woodward and their estates were continuously, from August 1, 1910, when the note declared upon matured, until the time the suit was filed on October 30, 1911, actually and notoriously insolvent, and also that Minnie May McCamant "requested plaintiff at about the time he acquired said note from her in writing, acting by her attorney, M. W. Stanton, or Stanton & Weeks, not to file suit to enforce the collection thereof until instructed so to do by her or her attorneys, agreeing in consideration of plaintiff not filing said suit that she, said defendant, would satisfy said note in full, as soon as she could sell certain real estate that she was then endeavoring to sell; that, if suit was filed, it would interfere with the selling of said real estate, and therefore she did not desire it to be filed; that, relying on said agreement, plaintiff deferred filing this suit until about the time said suit was filed," etc.

To this amended petition the appellant, among other things, pleaded the statute of limitation of four years, and the case proceeded to trial before a jury. The case was submitted upon special issues only, which, so far as thought to be material, were as follows:

"Did or did not S. A. Penix, attorney for the plaintiff herein, receive a letter from M. W. Stanton, as attorney for defendant, requesting a delay in filing suit on said note?

"Were or were not the signers of the note, J. H. and J. W. Woodward, actually and notoriously insolvent on September 21, 1910, and continuously thereafter until the filing of the suit herein?"

Both of the foregoing issues were answered by the jury in the affirmative, and the jury further answered that the letter referred to in the first issue was dated about the 1st of October, 1910. Upon the verdict so rendered the court entered up a judgment in favor of the plaintiff, and the defendant appeals.

The vital question presented by the assignments of error is whether the cause of action against appellant was barred under our statute of limitation of four years. It is undisputed that more than four years elapsed from the time when the plaintiff might have instituted his suit—when his cause of action accrued—until the plaintiff filed his amended petition, which was on April 2, 1917. And hence appellant was clearly entitled to a peremptory instruction in her favor, as she requested, unless it must be said that the plaintiff's amended petition was not, as applied to the circumstances of this case, and strictly speaking, the beginning of the suit against her. In other words, was the amended petition an amplification or enlargement of the original petition, or must the amended petition be accepted as the beginning or initial action against her?

The questions presented have not been entirely free from difficulty, but we have finally concluded that they must all be resolved in favor of appellee and of the judgment below. It has been many times held that a petition bad on general demurrer will stop the statute of limitation. Evans v. Mills, 16 Tex. 196; Ward v. Lathrop, 11 Tex. 287; Killebrew v. Stockdale, 51 Tex. 529; Burnett v. Casteel, 36 S. W. 782; Kauffman v. Wooters, 79 Tex. 205, 13 S. W. 549; T. & P. R. R. Co. v. Johnson, 34 S. W. 188; Tarkinton v. Broussard, 51 Tex. 555; Day v. Trading Co., 183 S. W. 85; Williams v. Warnell, 28 Tex. 612; T. & P. R. R. Co. v. Hamm, 2 Willson, Civ. Cas. Ct. App. § 491; Lyle v. Harris, 1 White & W. Civ. Cas. Ct. App. § 71; Warner v. Bailey, 7 Tex. 521.

The first two cases above cited hold that, where the original petition failed to show that the court had jurisdiction of the defendant, it could be amended so as to show jurisdiction without stating a new cause of action. In Killebrew v. Stockdale, supra, it was held that a petition on a promissory note bad on general demurrer for want of averment of ownership of a note, constituted a sufficient commencement of a suit to stop the running of the statute of limitation, and that the amendment to cure this defect was not the starting of a new cause of action or the commencement of a new suit. The other cases cited will further illustrate the proposition above stated.

The contract of an indorser of a negotiable promissory note is thus stated in section 363, title Bills and Notes, of 3 R. C. L., viz.:

"The full contract which the general commercial law implies from the indorsement of a negotiable promissory note on the part of the indorser, with and in favor of the indorsee, and every subsequent holder to whom the note is transferred, is: (1) That the instrument itself, and the antecedent signatures thereon, are genuine; (2) that he (the indorser) has a good title to the instrument; (3) that he is competent to bind himself by the indorsement as indorser; (4) that the maker is competent to bind himself to the payment, and will, upon due presentment of the note, pay it at maturity, or when it is due; (5) that if,...