Williams v. Randon

• Decision Date: 01 January 1853
• Parties: WILLIAMS v. RANDON.
• Court: Texas Supreme Court

10 Tex. 74

WILLIAMS

v.RANDON.

Supreme Court of Texas.

1853.

See this case for what is said respecting demurrers and due order of pleading.

Where the plaintiff alleged that the defendant “undertook and promised to pay,” &c., without alleging that the promise was in writing, the court considered the allegations as importing a promise by parol and not in writing.

Where the petition contained two counts, apparently founded on the same cause of action, in only one of which the date of the accrual of the cause of action was stated, the court considered the date as applicable to both, or it may have been considered that the one count was bad because it did not allege that the cause of action accrued within the period of limitation.

An amendment may set up a new cause of action, provided that it does not prejudice the other party, and that all the costs be paid up to the time of making such amendment, and that the amendment shall not relate back to the time of the commencement of the suit. It seems that a title acquired after suit brought may be relied upon, subject to the above restrictions. (Note 13.)

See this case for circumstances in which the court held that an amendment of the petition set up a new cause of action, which was barred before the amendment was filed. (Note 14.)

Error from Fort Bend. Suit by plaintiff in error against defendant in error, “for that whereas, heretofore, to wit: during the years A. D. 1841, 1842, 1843, and 1844, the said defendant became indebted to Charles Power in a large sum of money, to wit: the sum of three thousand eight hundred and eighty-six 9/100 dollars, for divers goods, wares, and merchandise sold and delivered by the said Charles Power to the said defendant, and for so much money lent and advanced by the said Charles Power to the said defendant at his special instance and request, and also for so much money paid, laid out, and expended in the purchase of the said goods, wares, and merchandise by the said Charles Power, at the like special instance and request of the said defendant, all of which will more particularly appear from the account, a copy of which is hereto attached, and prayed to be made a part of his petition. And your petitioner further avers that the said sum of money, in this count mentioned, being and remainig wholly due and unpaid, the said defendant, in consideration thereof, and that your petitioner would pay to the said Charles Power the said sum of money in said account specified as due and owing to the said C. Power from the said defendant, undertook and promised your petitioner to pay him the said sum of money in this count mentioned when he should be thereto afterwards requested. And your petitioner further avers that he did pay to the said Charles Power the said sum of money in said account specified as due and owing from the said defendant to the said Charles Power; yet to pay the said sum of money, &c.

And your petitioner further avers that the said defendant is justly indebted to him in the sum of three thousand eight hundred and eighty-six 9/100 dollars, for that whereas, heretofore, to wit: on the 24th day of December, A. D. 1844, your petitioner paid, laid out, and expended a certain other sum of money, to wit: the sum of three thousand eight hundred and eighty-six 9/100 dollars, for said defendant, at his special instance and request. In consideration whereof the said defendant undertook and promised to pay to your petitioner the said sum of money in this count mentioned when he should be thereto afterwards requested; yet to pay,” &c.

The account was annexed to the petition. The petition was filed October 27th, 1847.

May 5th, 1848, answer filed--plea of limitation of two years--of four years-- general denial.

Amended answer, filed November 3d, 1848--“that on the ______ day of ______ he fully paid and discharged the account, or cause of action, on which he is herein sued by the plaintiff, to one Thomas F. McKinney, who was duly authorized to receive and settle the same.”

Amended petition, filed May 2d, 1849--“that said defendant being indebted to said Charles Power, as alleged in plaintiff's petition, afterwards, to wit: on the 7th day of January, A. D. 1845, said defendant, in writing signed by himself, requested petitioner, through petitioner's agent, Thomas F. McKinney, to pay said sum of money, or three thousand eight hundred and nineteen 15/100 dollars, part thereof; and then and there, in writing signed by himself, said defendant promised to pay petitioner said sum mentioned in plaintiff's petition. Petitioner avers that said writing, signed as aforesaid, requesting petitioner through said agent, to pay said sum demanded, or three thousand eight hundred and nineteen 15/100 dollars, part of said sum, and promising repayment thereof, was lost or mislaid by this petitioner, and by some means unknown to petitioner said defendant obtained possession of the same; and that the signature thereto has been torn off. The sum mentioned in said writing is the sum of three thousand eight hundred and nineteen 15/100 dollars, for which,” &c.

Same day, demurrer and exception to original and amended petition--because he says that it appears by said original and amended petition that the causes of action therein sued upon are barred by the laws of limitation and prescription, and that he is not bound to answer the same,” &c.

Same day, plaintiff “excepts to the sufficiency of the plea of limitations of two years,” &c.

Same day, defendant filed demurrer and exception “to the amendment of plaintiff's petition, filed May 2d, 1849, because he says that the said amendment sets up a new and different cause of action, and is a departure from that originally sued upon: and 2d, because it appears that the said cause of action, if any, in virtue of the writing mentioned in said amendment, accrued more than four years prior to the filing of said amendment, and the suing upon the same.”“And should the said demurrer and exception be overruled, defendant, for answer, denies all and singular the allegations contained in plaintiff's original and amended petition. And for further answer he says, that, on the ______ day of ______ the writing described in the plaintiff's amended petition, was, for a valuable consideration delivered up to this defendant, by one Thomas F. McKinney, to whom the same was alone addressed and delivered by this defendant, and that all interest and cause of action in and upon the same were thereby released and relinquished to this defendant.”

The plaintiff moved to strike out the demurrer and exception to the original and amended petition; also the demurrer and exception to the amended petition; which motion the court overruled. The “demurrer to the original and amended petition” was sustained.

J. B. Jones, for plaintiff in error.

Harris & Pease and W. P. Ballinger, for defendant in error.

WHEELER, J., did not sit in this case.

LIPSCOMB, J.

The first error assigned is the refusal of the court to strike out the demurrers of the defendant, on the motion of the plaintiff.

It is not the practice to strike out a demurrer on motion, unless it is filed out of the order of pleading. If the plaintiff had not amended his petition, after the defendant had answered, the defendant would not have been permitted to demur: because it was out of the order of pleading, to demur after answer. But when the plaintiff's amended petition came in, the defendant had a right to demur or to answer. He chose the latter; and, in so doing, he violated no rule of pleading; and the motion to...