T. H. Hays & Co. v. Samuels

• Decision Date: 01 November 1881
• Docket Number: Case No. 2971.
• Citation: 55 Tex. 560
• Court: Texas Supreme Court
• Parties: T. H. HAYS & CO. v. E. M. SAMUELS & SONS.

55 Tex. 560

T. H. HAYS & CO.

v.E. M. SAMUELS & SONS.

Case No. 2971.

Supreme Court of Texas.

Nov. 1, 1881.

ERROR from Cook. Tried below before the Hon. J. M. Lindsay.

E. M. Samuels & Sons brought this suit against T. H. Hays & Co. on the 19th day of October, 1874, to recover $763.50 claimed to be due by account, which was attached to and made part of the petition. The principal items of the account were acceptances in favor of divers parties, drawn by Hays & Co. on Samuels & Sons. The defense was a general denial and plea of payment. A trial was had July 16, 1875, which resulted in a verdict and judgment against Hays & Co. for $292.70.

The assignment of errors are sufficiently manifest from the opinion. The variances insisted on as fatal are as between the name “Merrill” and ““Murrell,” “E. M. Samuel & Sons” and “E. M. Samuels & Sons,” “Hayden Wilsons & Allen” and “Hayden Wilson & Allen.”

W. O. Davis, for plaintiff in error.

Wilkins & Story, for defendant in error.

WATTS, J. COM. APP.

The plaintiffs in error insist that the account or bill of particulars attached to the petition, so far as it relates to the merchandise charged therein, is in contravention of articles 4611 and 4612, Paschal's Digest, and for that reason it was error to admit evidence in support of those items. The articles referred to require that the respective times or dates of the delivery of the several articles charged in any such account shall be particularly specified. The petition, so far as it relates to the sale and delivery of the merchandise, contains the appropriate allegations necessary to that character of action. The items as charged in the account are about the same, and will be sufficiently illustrated by giving the first item, which is as follows: “1873, August 30. To merchandise, $114.50.” Taken in connection with the allegations in the petition, this item sufficiently shows that on the day named the defendants in error sold and delivered to plaintiffs in error merchandise to the value of $114.50, and in this particular is a compliance with the said articles of the statute, which constituted at the time part of the law of limitations. The dates of delivery of the articles charged for in an account was required, so as to prevent any evasion of the law of limitation, by either post-dating or failing to give the date of sale and delivery. The cases referred to as sustaining the theory of plaintiffs in error are Love v. Doak & Tims, 5 Tex., 346, and May & Co. v. Pollard, 28 Tex., 678. The intimations found in these cases are in regard to items in an account totally dissimilar from that under consideration. The item in Love v. Doak was “for $215.70, as per bill rendered;” and in May v. Pollard, “amount account rendered, $380.58.”...