Wright v. Hardie

• Decision Date: 21 November 1895
• Citation: 32 S.W. 885
• Parties: WRIGHT et al. v. HARDIE et al.
• Court: Texas Supreme Court

32 S.W. 885

WRIGHT et al. v. HARDIE et al.

Supreme Court of Texas.

November 21, 1895.

Error to court of civil appeals of Fifth supreme judicial district.

Action by John T. Hardie & Co. against C. P. Wright and others. From a judgment of the court of civil appeals (30 S. W. 675) affirming a judgment for plaintiffs, defendants bring error. Reversed. For prior report, see 18 S. W. 615.

Coke & Coke, for plaintiffs in error. C. Bradford and Cobb & Avery, for defendants in error.

GAINES, C. J.

This case has been submitted upon its merits, together with a motion to dismiss the writ of error. The motion is made upon the ground that the application for the writ was not filed in time. The existing law provides that the application shall be filed in the court of civil appeals within 30 days after the overruling of the motion for a rehearing in that court. Laws 1895, p. 144. The motion for a rehearing in the court of civil appeals was overruled on the 20th day of March last, and the application was not filed in that court until the 17th day of August. The amended act in reference to applications for writs of error did not take effect until the expiration of 90 days from the day on which the legislature adjourned. The adjournment took place on the 30th day of April, 1895, so that the application in this case was filed after the law took effect, but within 30 days from that time. Probably, by reason of an oversight on part of the legislature, the original act, which provided for the organization of this court under the recent amendments to the constitution, contained no limitation upon the time in which an application for a writ of error from this court to a court of civil appeals should be filed. It was so held in the case of Taylor v. Ferguson, 26 S. W. 46, which was decided in this court at the term before the last. In that case, after a writ of error had been allowed, and the judgments of the lower courts had been reversed, and the cause remanded, the defendant in error filed a motion for a rehearing, and to dismiss the writ of error, upon the ground that the application for the writ was filed more than 30 days after the overruling of the motion for a rehearing in the court of civil appeals. The motion for a rehearing and to dismiss in this court was denied, upon the ground that the legislature had prescribed no limitation upon the time in which an application for a writ of error should be filed, and that holding, until the passage of the recent amendment, has ever since been the rule of decision in this court. The legislature may provide a shorter period of limitation for existing causes of action. It may make a statute of limitation for causes when none existed before, but it cannot, by so abbreviating the time in which suit must be brought, take away the right of action altogether. It must allow a reasonable time after the law goes into effect to bring suit upon actions which are not then barred. Where the time has been shortened, and the statute has been running against the cause of action, at the time the new statute takes effect, the rule adopted by the decisions of this court has been to apply absolutely neither the old law nor the new, but to allow such proportion of the unexpired period under the old statute as the time prescribed by it bears to the period limited by the new. Odum v. Garner, 86 Tex. 374, 25 S. W. 18, and cases cited. Applying the rule to the present case, there having been no limitation under the original act, we think it results that the full period should be allowed after the amendment took effect, in view of the fact that only 30 days is allowed under the amendment, which is a period, in itself, no more than reasonably sufficient to prepare and prosecute an application for a writ of error. We have so ruled on previous applications filed at this term. The motion to dismiss the writ of error is therefore overruled.

The suit was brought by the defendants in error to recover of plaintiffs in error an alleged indebtedness of $2,118, with interest, evidenced by a promissory note for that sum, executed on the 15th day of April, 1888, by the plaintiffs in error, and payable to the Farmers' Alliance Exchange of Texas, or order, on or before the 15th day of November next after date. The note was transferred by the payee, a private corporation, to the plaintiffs in the trial court before maturity. The defendants in that court pleaded, in substance, that the note was executed by them and delivered to the payee as a basis of credit with it for a certain association of farmers, of which the makers were members, with the understanding that the note was to be held to secure collaterally the payment for such merchandise as should be sold by the payee to such association, between the date of the execution and that of the maturity of the note; and that it was executed for no other purpose. It was also averred that the Farmers' Alliance Exchange bound itself in writing, at the time the note was executed, not to transfer it; and further, that because the members of the association for whose benefit the note was given did not require it, no goods were purchased by such association of the payee during the time stipulated. The defendants also alleged that when the note was transferred to plaintiffs, they had notice of the facts attending the transaction.

Upon the trial the defendants introduced evidence tending to establish their defense, but upon the question whether the plaintiffs had notice of these defenses at the time they accepted a transfer of the paper, there was a conflict in the testimony. Upon the issue of notice, the defendants requested the court to charge the jury, in effect, that if they believed that the note was fraudulently misappropriated and transferred by the Farmers' Alliance Exchange, the burden was upon the plaintiffs to show that they acquired it without knowledge of the fraud. The court refused the instruction, and its ruling was assigned as error in the court of civil appeals (30 S. W. 675), and is assigned in this court. As a question at common law, there is a conflict of authority as to the burden of proof in such cases; but we think the statute of this state puts the matter at rest with us. Article 272 of the Revised Statutes reads as follows: "The defendant in any action that may be instituted upon any written instrument may plead a want or failure, or partial failure of consideration, where such written instrument shall remain in the possession of the original payee or obligee; or when it shall have been transferred or assigned after the maturity thereof; or when the defendant may prove a knowledge of such want or failure of consideration on the part of the holder prior to such transfer." This clearly places the burden upon the defendants, and therefore the charge requested was correctly refused.

But the plaintiffs in error, the defendants in the trial court, also complain that the latter court erred in refusing to give a special charge requested on their behalf, to the effect that, if the note sued on was not supported by a consideration passing from the payee to the makers, and if the payee had transferred it to the plaintiffs in fraud of the defendants' rights, to secure a debt, then the plaintiffs could recover only to the amount of the secured debt which remained unpaid, and that the burden was upon the plaintiffs to show that amount. The legal proposition asserted in the requested instruction is sound. Where a negotiable instrument is transferred as a pledge, and the...