Zacharie v. Bryan

• Decision Date: 31 December 1847
• Citation: Zacharie v. Bryan, 2 Tex. 274 (Tex. 1847)
• Parties: JAMES W. ZACHARIE v. WILLIAM BRYAN
• Court: Texas Supreme Court

2 Tex. 274

JAMES W. ZACHARIE

v.WILLIAM BRYAN

Supreme Court of Texas.

December Term, 1847.

Appeal from Galveston County.

It is unusual to put questions of fact to the jury before questions of law arising upon exceptions or demurrer have been disposed of; and after verdict a reviewing court would be apt to consider such pleas as having been waived. [[[[[

If upon a new trial it is discovered that pleas, presenting questions of law by way of exception or demurrer, were accidently omitted to be disposed of on the first trial, it would not be error then to pass upon them, especially if they went to defeat the action.

The effect of a general demurrer is to admit that the facts stated are true, but to deny that such facts give any right of action. [7 Tex. 517;28 Tex. 610.]

A draft drawn by one agent of the government on another, and accepted by the drawee as agent, gives to the payee or holder no right of action against the acceptor, or drawer.

But if the principal for whom the draft was drawn and accepted has paid the amount to the acceptor, it is so much money in his hands for the use of the payee or holder, and for which an action may be maintained.

This suit was instituted by the appellant to recover from the defendant the amount of a draft which he had received by indorsement. The draft was drawn in New Orleans on the 26th of January, 1836, by Edward Hall as purchasing agent of the republic of Texas, upon the defendant as general agent of the republic, and accepted by him as agent.

The plaintiff in his original petition declared against Bryan as acceptor, in his individual capacity, as well as agent; but afterwards amended his petition by leave of the court, and in which amendment he charged him with being personally liable, because the government of Texas had, previous to the commencement of this suit, placed funds in his hands to pay the draft, which he had failed to apply and neglected and refused to make the payment.

The defendant excepted to the plaintiff's amended petition, on the alleged ground that it “introduced into the suit a new cause of action that did not exist, and had not accrued to the plaintiff at any time before the filing of the original petition, to wit, on the 18th of September, 1844.” The defendant also at the same time demurred generally to the plaintiff's original and amended petition, and pleaded a general denial and the statute of limitations.

The plaintiff's original petition was filed on the 18th of September, 1844, and the amended petition on the 22d of October, 1846. In the amended petition it is averred that in pursuance of a joint resolution of the congress of Texas, passed on the 16th of January, 1843, drafts to the amount of twenty-one thousand eight hundred and fifty-nine dollars and seventy-one cents were issued by the treasury department to the said defendant, being the amount of his account rendered against the government up to the 18th day of December, 1841, and that the draft, which is the foundation of the present suit, was one of the items in the account thus rendered and settled; that said drafts were payable, one-fourth on the 1st day of January, 1844; one-fourth on the 1st day of January, 1846; one-fourth on the 1st day of January, 1847, and the remaining fourth on the 1st day of January, 1848; and that...