Tisdale v. Mitchell

• Decision Date: 01 January 1854
• Parties: TISDALE, ADM'R, v. MITCHELL.
• Court: Texas Supreme Court

12 Tex. 68

TISDALE, ADM'R,

v.MITCHELL.

Supreme Court of Texas.

1854.

Where an article is sold on time by verbal contract, the statute of limitations does not commence to run until the expiration of the credit. Quere? whether store accounts form an exception to this rule, (Hart. Dig., Art. 2381,) where the purchaser dies more than two years after the charge.

Under the general denial, it seems, the defendant may prove a settlement, or admissions of the plaintiff, adverse to his right to recover in whole or in part.

Where the Court improperly rejected certain testimony, which was offered by the defendant, and afterwards, when the plaintiff introduced evidence touching the same facts, gave the defendant permission to introduce his evidence, which he failéd to accept, it was held there was no error.

Appeal from Harrison. The appellee sued the appellant in November, 1852, upon an account for 231 95-100 dollars for various articles furnished his intestate, services rendered, money loaned, &c., charged during a period commencing in January, 1850, and ending in July of that year. The defendant pleaded the statute of limitations, and a general denial; whereupon the plaintiff amended his petition, alleging that the account sued on did not become due until the 1st of January, 1851. The defendant moved the Court to strike out the amended petition; which motion the Court overruled. On the trial the defendant offered to prove by a witness that, at an attempted settlement between the defendant's intestate and the plaintiff, in June, 1850, there was an admitted balance between them of some forty dollars, but that the subject matter of the settlement did not include all the items in account between them. The Court rejected the testimony on the ground that it was matter in avoidance of the action and there was no answer setting up such matter. Afterwards the plaintiff gave evidence as to said settlement, and thereupon the Court gave permission to the defendant to introduce any evidence he desired to introduce respecting it. It was in proof that the articles and services were not to be paid for until January 1st, 1851. There was a verdict for the plaintiff for 196 33-100 dollars; a motion for a new trial overruled; judgment for the plaintiff, and the defendant appealed.

Clough & Lane, for appellant.

D. Field, for appellee.

WHEELER, J.

The ground, mainly relied on for a reversal of the judgment, is the ruling of the Court in refusing to strike out the amendment to the petition. There manifestly was, we think, no error in the ruling...