McKay v. Overton

• Decision Date: 24 November 1885
• Docket Number: Case No. 1924
• Parties: H. J. MCKAY v. M. D. OVERTON, EX'X.
• Court: Texas Supreme Court

65 Tex. 82

H. J. MCKAY

v.M. D. OVERTON, EX'X.

Case No. 1924

Supreme Court of Texas.

Nov. 24, 1885.

APPEAL from Rusk. Tried below before the Hon. J. G. Hazlewood.

The opinion states the case.Field & Buford, for appellant, on the endorsement, cited: R. S., art. 3219; Coles v. Kelsey, 27 Tex., 555; Aldrite v. Demmit heirs, 32 Tex., 575;Erskine v. Wilson, 27 Tex., 117.

On suit before settlement, they cited: Lockart v. Lyttle, 47 Tex., 452;Merriwether v. Hardeman, 51 Tex., 436.

G. H. Gould, for appellee.

ROBERTSON, ASSOCIATE JUSTICE.

The appellee, the plaintiff in the court below, declared upon an instrument in writing in the following language: “$2,297. One day after date I promise to pay Jno. F. Overton twenty-two hundred and ninety-seven dollars for value received, with ten per cent. interest from date, for an one-half undivided interest in” certain lands mentioned, and then concluded: “The above note is open for the correction of any errors that may be found in our settlement, on pages 104 and 115, to date, this June 1, 1878. [Signed.] H. J. McKay.”

Upon this instrument was the following indorsement: “This is to certify that I renew the within note this 30th of April, A. D. 1882. [Signed.] H. J. McKay.”

To this pleading the defendant-appellant, demurred on the ground that the above indorsement was not sufficient to prevent the note from being barred by the statute of limitations. The court overruled the demurrer, and this action is assigned as error. The effect of the indorsement is a reiteration of the promises contained in the original instrument. It is undertaking anew, in the terms of the original contract, and is unquestionably good to prevent the bar of the statute.

The defendant also demurred to the plaintiff's petition, on the ground that the petition showed that she sued as executrix of Jno. F. Overton's will, and that Overton and the defendant had been partners at the date of Overton's death, and prayed for and sought no settlement of the partnership matters. This demurrer was properly overruled, as the petition did not show that Overton and defendant had ever been partners. If it had shown such a partnership it does not necessarily follow that the plaintiff could not maintain the suit without having a settlement of the partnership affairs, as the obligation sued upon showed an indebtedness by the defendant independent of the state of the partnership accounts. In this respect the case differs from Lockhart v. Lyttle, 47 Tex., 452;Merriwether v. Hardeman, 51 Tex., 436.

The defendant pleaded in answer, among other things, that he and Overton had been partners at the date of the latter's death, and that Overton, without defendant's consent, had lent certain partnership property to B. Cannon & Co., and at the time, several years before the execution of the contract sued upon, agreed to be responsible to defendant for his half-interest in the loaned property; that the loaned property was never returned, and that he was entitled to a credit upon the demand sued upon of one-half the value of the loaned property. There was evidence tending to support this plea, and the defendant offered himself as a witness to prove that the loaned property was never returned by Cannon & Co., and his testimony was rejected upon the ground that he would be testifying to a transaction with plaintiff's testator, contrary to the statutes, and that more than four years had elapsed from the date of the transaction to the date of filing the pleading, in which this defense was averred. Neither of these objections were tenable. The answer rather indicates than negatives the idea that Overton's agreement was that he would account in the course or settlement of their partnership affairs for defendant's half interest in the loaned property. Time, therefore, would not necessarily bar the defendant's remedy upon Overton's promise. That the loaned lumber had not been returned was not a transaction with Overton, but an independent fact, upon which the defendant was a competent witness. The exclusion of this testimony was, therefore, error, for which the cause must be reversed, if the matter it tended to prove presented any defense or set-off to the plaintiff's suit. The demand sued upon was an ascertained sum due by the defendant to Overton. The pages referred to in the instrument are pages in the partnership book of Overton and defendant, and on one of them is an agreement signed by both partners, stating that the balance due by defendant to Overton at the date of the obligation, is the sum of twenty-six hundred and eighty-seven dollars and twenty-four cents, which, on the same day, is reduced to the sum named in the instrument sued on by crediting defendant with his interest in certain notes. Neither party contends that this was a final or complete settlement of the partnership affairs of Overton & McKay, even up to its date. The plaintiff stands upon the defendant's promise to pay the sum named in the obligation sued upon, and to her it makes no difference whether it is the result of a partial or final settlement of the partnership affairs, or arises from matters independent of the partnership. The defendant has promised to pay to her testator so much money, and this she is entitled to recover, unless the defendant shows a valid defense or set-off. The...