Wilkinson v. Thulemeyer

• Decision Date: 01 January 1876
• Parties: JOHN WILKINSON v. SIMON THULEMEYER.
• Court: Texas Supreme Court

44 Tex. 470

JOHN WILKINSON

v.SIMON THULEMEYER.

Supreme Court of Texas.

1876.

APPEAL from Colorado. Tried below before the Hon. Livingston Lindsay.

Simon Thulemeyer sued John Wilkinson, a non-resident, owner of a plantation in Colorado county, Texas, managed and conducted by his agent, George S. Zeigler, on an account for money and goods supplied on Wilkinson's account to said agent necessary for the purpose of carrying on said plantation. The amount of the account was $621.82, and it was alleged that Wilkinson always recognized Zeigler as his agent, and approved his acts, and had acknowledged the justice of the account when on a visit to Texas. Service was had by publication.

Both Wilkinson and Zeigler answered, but by separate counsel, Wilkinson denying that Zeigler had authority to bind him, and denying ever approving the account sued on.

By amendment, plaintiff set up an itemized bill, (which was made against Zeigler,) and alleged that Zeigler had in writing acknowledged its justice, and again alleged Wilkinson's sanction of Zeigler's acts in the matter. Much of the account as set out appeared to be barred by limitation of two years. In the amended petition judgment was asked against both Wilkinson and Zeigler.

Wilkinson, by amended answer, alleged that the credit given by plaintiff was given to Zeigler, and pleaded limitation of two years.

The additional facts are fully stated in the opinion.

Judgment was rendered for the plaintiff against Wilkinson alone, from which he appealed.

J. T. Harcourt, for appellant.

Delaney & Cook, for appellee.

IRELAND, ASSOCIATE JUSTICE.

Appellant brought suit against Wilkinson on an open account running in date from 1870 to 6th March, 1871.

The suit was brought on the 10th day of September, 1873. Wilkinson is alleged to be a citizen of the State of Missouri, and the proof shows that he never resided in Texas.

He was cited by publication, and came in and filed a demurrer and answer, denying all indebtedness and pleading limitation. On the 7th of February, 1874, plaintiff filed an amended petition in which this allegation occurs: “And the said Zeigler, his agent, executed his notes during his agency aforesaid, wherein the justice of the debt was duly acknowledged and promise of payment made in compliance with said demand. The said Wilkinson at all times acknowledged the agency of said Zeigler, and also the justice of said demand, and stated to your petitioner that he has arranged with his said agent to pay the same.”

This is the only allegation touching the notes. If the notes were made the basis or cause of action, it requires no argument to show that there was no such...