Thompson v. Swearengin

• Decision Date: 01 January 1878
• Citation: 48 Tex. 555
• Parties: J. W. AND CYRUS THOMPSON v. J. T. SWEARENGIN, ADM'R.
• Court: Texas Supreme Court

48 Tex. 555

J. W. AND CYRUS THOMPSON

v.J. T. SWEARENGIN, ADM'R.

Supreme Court of Texas.

1878.

APPEAL from Washington. Tried below before the Hon. I. B. McFarland.

September 11, 1869, James W. and Cyrus Thompson, commission merchants and traders, doing business in the city of Galveston under the firm-name of “A. B. Thompson & Co.,” brought suit against J. T. Swearengin, administrator de bonis non of the estate of Mrs. M. A. Drake. The petition alleged an indebtedness of $1,468.54, with interest from June 5, 1868, for goods, wares, and merchandise sold and delivered by plaintiffs to the intestate, and for money paid out at her request and for her use; the death of Mrs. Drake on September 17, 1867; and the presentation and rejection of the account on the 7th of September, 1869. The account attached to and made part of the petition was made out in the name of “A. B. Thompson & Co.,” and the value of each item in the account is carried out in coin and in currency, as also are the credits.

In the statutory affidavit to the account, the affiant, J. W. Thompson, is described as “of the firm of A. B. Thompson & Co.”

A judgment was rendered, establishing the claim, which, on appeal, was reversed. The opinion reversing the case is as follows:

“OPINION BY WALKER.--* * * The case presents some peculiarities. The suit is on an open account. The items are charged in 1867 and 1868. Some of them are for money, and others for plantation supplies. There are two columns of charges: the one states the items in gold, the other in United States currency, at the large premium rates which gold commanded during those two years; and the verdict and judgment is for dollars and parts of dollars. The plaintiffs could not have such a judgment. They must bring their suit either for currency or for coin; and if the transactions are of such a character that entitles them to a gold judgment, they may take it. It is true, they may lose by having to take their judgment now, when gold commands a lower premium than it did in 1867 and 1868. But if they are allowed to recover gold now, and the interest on their money, it is all the law will give them. It is, perhaps, useless to discuss the case further, unless it be to remark that there certainly can be no difficulty, in the District Court, in ascertaining what items in their account may or may not be properly charged to the estate of Mrs. Drake. Her estate would not be liable for money advanced to other persons, or goods sold after her death, unless the items are to be regarded as funeral expenses, or expenses necessary to the administration.”

September 11, 1873, plaintiffs amended the petition, and alleged: “That on the 1st of September, 1865, and continuously from that date to the bringing of this suit, they were commission merchants, doing business in the county and city of Galveston under the firm-name and style of A. B. Thompson & Co.; that the members of said firm were A. B. Thompson, Cyrus Thompson, and J. W. Thompson; that at the time of the institution of this suit A. B. Thompson was dead, and plaintiffs continued the firm business as surviving partners; that during said period they were engaged in receiving and selling produce for planters and others, and in purchasing and forwarding supplies to them, and in making advances for supplies to their customers, of whom Mrs. M. A. Drake was one.” The petition then stated the sale, delivery, advancement, &c., of the goods, moneys, &c., set out in the original account sued on, and set it out anew, with value to each item in coin or in currency, in accordance with the (alleged) facts, and in accordance with the opinion of the Supreme Court given above.

September 11, 1873, the defendant excepted to the amended petition, (1) because it sought to make new parties, and (2) because filed too late, more than three months after the account was rejected. The defendant pleaded in reconvention value of cotton shipped to plaintiffs by the former administrators, and not accounted for.

September 27, 1873, a jury was waived, and the parties submitted the case, upon the law and facts, to the court. The pleadings, evidence, and argument of counsel being heard, the court sustained the demurrer to the original and amended petition, and dismissed the suit. Plaintiffs appealed.

Breedlove & Ewing, for appellants, cited Burleson v. Goodman, 32 Tex., 229; Pars. on Part., 440, 447; Martel v. Hernsheim, 5 Tex., 205;Knight v. Holloman, 6 Tex., 153;Fowler v. Willis, 4 Tex., 46;Ward v. Wheeler, 18 Tex., 249;Werbiskie v. McManus, 31 Tex., 123;Howe v. Rogers, 32 Tex., 223; Smith's Lead. Cases, pp. 408, 413, 417, 418.

Sayles & Bassett, for appellee, cited Chitty's Pl., 306, 307; Adams v. Bateman, 6 Bing., 110; Henderson v. Kissam, 8 Tex., 46;Whitehead v. Herron, 15 Tex., 127;Koschwitz v. Healy, 36 Tex., 666;Garrison v. King, 35 Tex., 183; Paschal's Dig., 6827; Cole v. Dial, 8 Tex., 347; 1 Greenl. Ev., 117 and n.; Wilbur v. Selden, 6 Cow., 162;Merrill v. I. and O. R. R. Co., 16 Wend., 595;Armstrong v. Lipscomb, 11 Tex., 651;Kinnard v. Herlock, 20 Tex., 48;Price v. McIver, 25 Tex., 769;Kinsey v. Stewart, 14 Tex., 457;San Antonio v. Lewis, 15 Tex., 388;McIntosh v. Greenwood, 15 Tex., 116;Patrick v. Gibbs, 17 Tex., 275.

MOORE, ASSOCIATE JUSTICE.

The manner in which this case was tried in the court below is neither to be commended nor encouraged, though it was in accordance, it seems, with the agreement of the parties. A jury was waived, and the case submitted to the presiding judge on the facts as well as law; but instead of ruling upon the exceptions to the petition before hearing the evidence, or passing upon the objections taken during the progress of the trial to the admissibility of evidence, all the testimony offered by the parties was admitted, subject to the decision of the court on its final disposition of the case. The result was, that after the delay and expense of a hearing of the entire case on the facts as well as law, the court sustained the defendant's exceptions to the plaintiffs' petition, and dismissed the action. The practical effect of this course of proceeding has been to deprive the plaintiffs of the privilege of amending their pleadings, if they desired to do so. It is equally obvious, if the case had been decided upon the facts...