Taylor v. Read

• Decision Date: 14 October 1908
• Parties: TAYLOR v. READ.
• Court: Texas Court of Appeals

113 S.W. 191

TAYLOR v. READ.

Court of Civil Appeals of Texas.

October 14, 1908.

Appeal from Brown County Court; A. M. Brumfield, Judge.

Action by T. A. Read against L. H. Taylor. From a judgment of the county court for plaintiff, on appeal from justice court, defendant appeals. Reversed and remanded.

Arch Grinnan, for appellant.

FISHER, C. J.

This is a suit by Read against Taylor, originally brought in the justice's court, for the sum of $146.20, in which court Read recovered judgment. Upon appeal by appellant to the county court, judgment was there rendered in Read's favor for the amount sued for.

Plaintiff, in his pleadings in the justice's court, alleged as his cause of action "that under a contract with defendant, plaintiff sold his farm in Brown county, Tex., on which defendant lived, on or about August 1, 1906, the understanding and agreement being that plaintiff was to receive a commission of 5 per cent. for selling said farm"; then goes on to allege the amount he would be entitled to under this agreement. When the case reached the county court, plaintiff there amended his pleading, and relied upon and alleged the following as his cause of action: "Plaintiff, T. A. Read, alleges that on or about August, 1, 1905, he and one W. D. Woodruff were partners in the business of selling land for commission; that on or about said day and year above mentioned the said defendant, L. A. Taylor, listed and contracted with the plaintiff to sell his said lands, consisting of two tracts, to wit, the home tract of 172 acres and the lower place of 349 acres, said land being situated near Bangs, in Brown county, Tex., and agreed to pay plaintiff a commission of 5 per cent. in case of sale. Plaintiff, acting under said listment or contract of sale, on or about August 1, 1906, sold defendant's home place of 172 acres for the sum of $2,974, the price at which same was listed. Plaintiff alleges that in the winter and spring of 1906 he and the said Woodruff dissolved their said co-partnership, and the plaintiff acquired all the rights and interest of the said Woodruff in said land agency, and that he is now, and at the time of filing this suit, the sole owner of the above claim and cause of action." The defendant in the county court filed and presented a special demurrer to this amendment, on the ground that it asserted a new cause of action; or, in other words, that the cause of action there asserted was different from that relied on by the plaintiff in the justice's court. The court overruled this demurrer, and under the assignments of errors, this ruling is the first question to be disposed of. The substantial effect of the pleading of the plaintiff in the justice court is to allege a cause of action or contract between the appellant and the plaintiff in his individual capacity, and not with the firm of Read & Woodruff. The cause of action asserted by the plaintiff in the amendment filed in the county court substantially declared upon a contract between Read & Woodruff and appellant. It is clear from the statement made in this amendment that at the time the contract was made Read & Woodruff were partners in the land business, and Woodruff had an interest in the same as a partner, and subsequently upon dissolution, assigned this interest to Read.

There is a vast difference in a contract made with one as an individual and with the firm of which he may be a member, and there can be no sort of question that if he had sued upon a contract made with him as an individual, and it had been developed by the evidence that it was made with the firm of which he was a member, the variance would be fatal. Without further discussing the question, we are of the opinion that the amendment set up a new cause of action, and that the trial court erred in overruling appellant's special exception. Bingham v. Talbot, 63 Tex. 273; Lutterloh v. McIlhenney Co., 74 Tex. 73, 11 S. W. 1063; Letot v. Edens (Tex. Civ. App.) 49 S. W. 109; Stewart v. Gordon, 65 Tex. 344. Article 358, Sayles' Ann. Civ....