Metzger v. Wendler

• Decision Date: 01 January 1871
• Citation: 35 Tex. 367
• Parties: F. METZGER v. C. F. WENDLER AND OTHERS.
• Court: Texas Supreme Court

35 Tex. 367

F. METZGER

v.C. F. WENDLER AND OTHERS.

Supreme Court of Texas.

1871.

1. A party has a right to amend his pleadings at any stage of the case, before he has announced ready for trial.

2. In civil causes, the district judge is not bound to charge the jury at all, unless requested so to do by one of the parties.

ERROR from Kendall. Tried below before the Hon. M. B. Walker.

On the fourteenth day of September, 1868, Metzger brought this suit against C. F. Wendler, Henry Wendler and Carl Adam, on two promissory notes executed by them to him, at San Antonio, on the twenty-sixth of October, 1861, for $510 each, one due at twelve, and the other at twenty-four months after date. The petition admitted payments on the first note, of $65, September 24, 1865, and of $60, March 1, 1866.

At the fall term, 1868, the defendants filed a general denial, except as to payments, and on account of them made an indistinct reclamation of “the amount to be due defendants, less the amount of plaintiff's claim in lawful money, if any he have.” The defendant Adam also pleaded that he was only a surety on the notes, and the plaintiff admitted this by replication. At a subsequent day of the same term, the defendants amended, and pleaded a tender at maturity of the amount due upon the notes, which, however, was struck out, on plaintiff's motion, because filed without leave of court. The defendants then moved for a continuance for want of the testimony of one Lehmberg, of Llano county, whose testimony they swore to be material to their defense. The motion was overruled, but the term of court was adjourned, and the cause thus stood continued by operation of law.

At the ensuing spring term, 1869, the defendants amended, and set up the defense that the notes were contracted to be paid in confederate money. This answer was filed on the first of June, and the cause went to the jury the next day. The plaintiff moved the court to strike out this answer, on the ground that it came too late, the cause having been announced ready for trial at the preceding term. But this motion was overruled, and the plaintiff excepted.

The trial was had on the second of June, 1869. The plaintiff read the notes sued on, and there rested his case.

The defendants introduced William Nickel, who testified that he was present in October, 1861, when the plaintiff and the Wendlers talked over their settlement of the grocery business which they, as partners, had conducted at the Leon Springs, between San Antonio and Bœrne; that plaintiff Metzger stated that the Wendlers had bought out his interest in the business, and were to pay for it in confederate money; that Metzger and the Wendlers had not had any other business transaction since that one, or witness would have known of it. On cross-examination, the witness said he did not see the notes signed, and had never seen them at all until this trial. F. Schwarz, witness for the defendants, testified to the same effect as Nickel. E. Altgelt, for defendants, testified that confederate money came into circulation in this section of country about the first or second week of October, 1861.

The plaintiff, in rebuttal, proved by two witnesses that confederate money came into general use in or about December, 1861. A third witness thought it came into circulation about August, September or October, 1861; and a fourth put the time as “the closing months of 1861.”

The court charged the jury to find whether the notes were payable in confederate money; and if so, the contract was illegal, and they would find for the defendants. The jury found that the notes were payable in such money, and returned their verdict for the defendants. Judgment was rendered for the defendants, in accordance with the verdict.

Plaintiff moved for a new trial, because the court erred in allowing the last amended answer to be filed; and because the verdict was contrary to the law and the evidence. The motion was overruled, and plaintiff gave notice of appeal. The appeal, however, was not perfected, and the cause is brought up by writ of error, and the errors assigned are the allowance of the last amended answer, setting up the confederate money defense, the charge of the court, and the refusal of a new trial. By the case next reported in this volume, it will be seen that the litigation in the court below did not stop at this stage; but that the plaintiff, after the close of the term, filed a bill for a new trial, and being cast in that proceeding also, brings it also to this court by writ of error.

His counsel filed an able brief, comprising both cases.

W. B. Leigh, for the plaintiff in error.

1. Touching the first error assigned, we would refer the court to the record, which shows such a multiplicity of pleas, amendments, etc., on the part of the defendants, that the thought is irrepressible that they were purposely confused, so that a chaotic mass of pleas might hide their weakness, and in certain contingencies facilitate procrastination and dilatory and vexatious proceedings. The cause of action, a suit on plain promissory notes, admitted of a plain answer. At a previous term of the court, the cause was ready for trial as far as the pleadings were concerned, and would have been disposed of had the sheriff been able to get a jury. There must be a limit to the right of amendment--a period in the progress of the cause beyond which it should not be allowed to amend--especially when the proposed amendment, instead of simplifying, multiplies the issues, and has a tendency to mislead and to mystify. The statute, art. 54, Pas. Dig., gives the court directory power over amendments; and we think that power should have been exercised by the court below when the amendment was presented. See remarks on pleadings in Mims v. Mitchell, 448, 449, 1 Tex. 2. The court erred in its charge to the jury, in omitting instructions informing the jury in some way that the law presumes that the promissory notes sued on were given for a valuable and legal consideration. Although the statute does not make it obligatory upon the judge to charge the jury, yet, whenever he does so, the whole of the law applicable to the case should be embraced in the charge. In San Antonio v. Lewis, 9 Tex. 71, this court say: “The court must instruct the jury as to the legal effect of written evidence.” Had the jury in the case at bar been informed that a legal presumption of legality of the notes sued on had to be overcome by defendant's testimony, they would in all probability have found a different verdict. In Chandler v. Fulton, 10 Tex. 21, this court reversed the judgment on the ground of misdirection of the court, although the facts sustained the verdict.

In Graham & Waterman on New Trials, vol. 3, page 768, it is said: “As the court is the expounder and interpreter of the law, and the jury looks to and relies upon the court for information in that behalf, it is evident that an erroneous exposition of the law on a point material to the issue will be fatal. Therefore, though the verdict of the jury in the court below be in accordance with the opinion of the appellate court upon the evidence, yet, if the former gave erroneous instructions to the jury as to the law, so that it is not entirely certain that justice had been done, the latter will grant a new trial.” In the same work, vol. 1, p. 267, we see it stated that the rule emphatically applies to actions arising ex contractu. In the same volume, page 273, it is said, that if, in the absence of proper instructions, the jury err, the verdict will be set aside.

In the case at bar, it must be borne in mind that the jurors of Kendall county are Germans, but little used to court proceedings, and by the absence of proper instructions easily led to the belief that, no matter how light and unsatisfactory the witnesses Schwarz's and Nickel's testimony be, they must find according to the drift of it.

That promissory notes import a valid consideration, and that illegal actions are not presumed, are propositions requiring no authorities.

Aside from omissions, we deem the charge of the court erroneous, because not in consonance with the principles enunciated by the supreme court of the United States in the cause of Thorington v. Smith, decided December term, A. D. 1868, and reported in 8 Wall. 1. In the case at bar the parties resided within the so-called confederate states; the bargain was a sale of property in the usual course of business, and not for the purpose of giving currency to the notes, or otherwise aiding the rebellion. “Where the charge was incorrect, it is the rule of this court to reverse the judgment.” Mims v. Mitchell, 1 Term, 451.

Even if the charge as given is the correct law in the abstract, did the evidence warrant the court in giving those instructions? We think not. Not one of the witnesses was present when the promissory notes were made at San Antonio; the bargain spoken of by the witnesses Nickel and Schwarz was made at Leon Springs, eighteen miles from San Antonio, and about a week or ten days before the dates of the notes; the witnesses never saw the notes before the trial, and knew nothing of them.

3. The court below should have granted a new trial, because

the evidence was in itself insufficient to warrant the verdict. It consists of a casual conversation, not even specially addressed to the witnesses, who had no reason to pay any special attention to it, the whole matter being entirely foreign to them, made about the middle of October, A. D. 1861, and testified to June 2, 1869; the great war of the rebellion, with all of its excitements, having passed between those dates. But even that conversation did not relate to the notes, but to a bargain, of which it is supposed these promissory notes formed a part. Not one of the witnesses knows anything of the promissory notes. Opposed to that is the presumption of legality, the credits, payments made by defendants on the notes after the downfall of confederate...