Merriman v. Swift & Co.

• Decision Date: 20 April 1918
• Docket Number: (No. 8859.)
• Citation: 204 S.W. 775
• Parties: MERRIMAN v. SWIFT & CO.
• Court: Texas Court of Appeals

204 S.W. 775

MERRIMAN v. SWIFT & CO.

(No. 8859.)

Court of Civil Appeals of Texas. Ft. Worth.

April 20, 1918.

Rehearing Denied May 25, 1918.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Swift & Co. against M. Merriman. From a judgment for plaintiff, defendant appeals. Affirmed.

Graves & Houtchens, of Ft. Worth, for appellant. Isaacs, Agerton & Isaacs, of Ft. Worth, for appellee.

BUCK, J.

Appellee sued appellant on nine checks, aggregating $1,178.74, the dates of which ran from December 7, 1912, to June 9, 1913. After alleging that plaintiff was a corporation, with a permit to do business in the state, with its domicile in Tarrant county, and that defendant resided in Hardeman county, the charging portion of the petition is as follows:

"For cause of action, plaintiff represents that on the respective dates hereinafter mentioned the defendant made, executed, and delivered to plaintiff at Ft. Worth, Tarrant county, Tex., certain checks, drawn upon the Exchange National Bank of Ft. Worth, Tex., said bank being in some of said checks referred to as the Exchange National Bank of North Ft. Worth, Tex.; said checks being signed, executed, and delivered by the defendant M. Merriman to and in favor of this plaintiff, payable to the order of this plaintiff, and being in amounts and executed and delivered on dates as follows:

                Check No.     Date of Execution of Check.        Amount
                    31             December 7, 1912              $  122 36
                    35             December 21, 1912                168 73
                    37             December 28, 1912                142 28
                    44             January 4, 1913                  101 64
                    46             January 15, 1913                 122 03
                                   January 18, 1913                 146 88
                     8             May 23, 1913                     115 50
                    20             June 2, 1913                     159 32
                     7             June 9, 1913                     100 00
                                                                 _________
                         Total ................................. $1,178 74
                

"The first six of said checks were drawn upon the Exchange National Bank of North Ft. Worth, and the remaining three thereof were drawn upon the Exchange National Bank of Ft. Worth, Tex.

"Plaintiff says that it received said checks for a valuable consideration, and presented same in due course of business to the bank on which same were drawn for payment, and payment thereof was refused by said bank, and said checks have never been paid by or through said bank or otherwise.

"Plaintiff says that it is now the owner and holder of said several checks, and same are past due and wholly unpaid, and the defendant is indebted to the plaintiff thereon and by reason thereof in the aggregate sum of $1,178.74, with interest on each check since the date thereof."

In the prayer for relief plaintiff asked that it "do have and recover from the defendant, M. Merriman, for the amount of the aforesaid debt, with interest thereon, for costs of suit," etc. Defendant urged a general demurrer, and specially excepted to plaintiff's petition on the grounds: (1) That it nowhere alleged that defendant promised, either expressly or impliedly, to pay any amount to plaintiff, or that defendant became liable to plaintiff in any amount; (2) that it appeared from said petition that plaintiff's cause of action, if any, was barred, both by the two years, and the four years' statute of limitation. He acknowledged that he executed the checks mentioned in plaintiff's petition, but denied liability thereon. He further alleged that he executed the checks conditionally, and that by agreement with plaintiff's creditman and agent, Mr. Cunningham, it was understood and agreed that defendant would not be liable thereon unless he became financially able to pay said checks, and that it was further agreed that the checks would not be presented to the bank upon which they were drawn until he (the defendant) was so financially able and should so notify said Cunningham; that the checks were all postdated, and each was delivered to plaintiff on a date prior to that shown on the check; and that he had never been financially able since the issuance of said checks to pay the same. The court overruled the general demurrer and the special exceptions, and, after the evidence was concluded, instructed a verdict for plaintiff. From the judgment based thereon, the defendant has appealed.

The first assignment is directed to the overruling of the general demurrer. We think in this action there was no error. While the petition is not so full or detailed as it might be, we think it is sufficient. We have examined every decision relied on by appellant to support this assignment, and do not think the petition in this case is subject to the criticism made in a single case cited. Appellants cite Jennings v. Moss, 4 Tex. 452; Frazier v. Todd, 4 Tex. 461; Malone v. Craig, 22 Tex. 609; Whitaker v. Record, 25 Tex. Supp. 382; Reeves v. Miller, 28 Tex. 578; Flaxman v. Rice, 65 Tex. 430; Colbertson v. Beeson, 30 Tex. 76. For instance, in the Jennings Case the petition fails to allege the execution by defendant of the note sued on. In Frazier v. Todd and Flaxman v. Rice the ownership of the note by plaintiff was not alleged. In Malone v. Craig it was not shown to whom the notes were executed. But none of these deficiencies is here shown. Hence we overrule this assignment.

We do not think the second assignment is sufficient to require consideration, it being as follows:

"Based upon paragraph 2 of defendant's amended motion for new trial (Tr. p. 14). Plaintiff must allege, in his petition, some act of defendant creating a legal liability on his part, and a petition which relies upon an implied contract as the basis of a cause of action must specifically aver such implied contract and defendant's liability thereon, and must not leave it to inference to be deduced from other facts pleaded, and a petition in such a case, which fails to make a specific allegation of the implied contract and defendant's liability thereon is bad as against a special exception."

No proposition follows this assignment, nor is the assignment adopted as a proposition. The assignment does not complain of any action of the court. Rule 30 for Courts of Civil Appeals; Article 1612, Vernon's Sayles' Tex. Civ. Stats; Poland v. Porter, 44 Tex. Civ. App. 334, 98 S. W. 216; Pullman v. Hoyle, 52 Tex. Civ. App. 534, 115 S. W. 318, Willis v. Hatfield, 63 Tex. Civ. App. 582, 133 S. W. 929; I. & G. N. Ry. Co. v. Boykin, 85 S. W. 1164; ...