2 Tex. 485 | Tex. | 1847
Lead Opinion
delivered the opinion of the court.
This suit was originally brought by Stewart, as administrator of Conroy. The petition sets out that at the time of the death of Conroy the defendant was largely indebted to him for goods, wares and merchandise, before that time sold and delivered, at the special instance and request of the said defendant Frosh, and plaintiff avers the amount of that indebtedness to be twelve hundred dollars. The petition further alleges that the said defendant was indebted to the intestate at the time of his death, the sum of one thousand dollars for money had and received at the special instance and request of the said' defendant.
The record shows that subsequently the administration to Stewart was vacated, and letters of administration were granted to Joseph A. Swett, who as such was made a party, and obtained leave to amend the petition.
The defendant demurred to the petition and pleaded the statute of two years’ limitation, and a general denial of the allegations contained in the petition. The presiding judge overruled the demurrer, and the cause went to the jury on the other defenses.
The jury returned a verdict for the plaintiff for seven hundred dollars, on which the court rendered a judgment. 5fhe only evidence offered on the trial, as appears from the statement of facts, was the evidence of James W. Moore, as follows: “That at the request of the plaintiff he called on the defendant and asked him if he had any objections to stating how much he was indebted to Peter Conroy’s estate;” that he made the following memorandum:
“ Lawrence Frosh told me that he is indebted to the estate of Peter Conroy about seven hundred dollars, July 18, 1845, signed J. W. Moore;” he stated that the conversation took place about the 15th or 18th of July, 1845; that during the conversation, “Frosh admitted that he was indebted to Conroy’s estate at least seven hundred dollars.” The defendant asked for a new trial, which was overruled.
The plaintiff in error contends that the judgment of the court below ought to be reversed, because the petition is uncertain and does not show any cause of action. He contends that under our practice the petition should state circumstantially the manner in which the indebtedness accrued; that if this is not done, the defendant would not be advised with sufficient certainty to enable him to make the proper defense; that if the time and manner in which the indebtedness accrued is not stated, the defendant would be deprived of his defense of two years’ statute of limitation on open accounts. It is believed by the court that if a cause of action is shown in substance, but that it is informally averred, and not sufficiently
The judgment is affirmed.
Dissenting Opinion
Opinion of
dissenting in part.
I concur in the opinion that the exceptions to the legal sufficiency of the petition were rightly overruled; not, however, on account of the form of the exceptions, but for the reason that the petition did disclose a valid, subsisting cause of action. Of this, it seems to me, there can be no doubt. The court could not know, from the face of the petition, that the cause of action there set forth was not described accurately, according to the very truth of the case; and with all the specialty, particularity and certainty of which it was susceptible, and which was attainable by the plaintiff under the circumstances of the case. The court therefore could not adjudge the petition insufficient in law, as disclosing no cause of action. But if the cause of action was not set forth truly, according to the facts of the case, it was competent for the defendant, at the
In the application made by the court of the distinction between dilatory and peremptory exceptions, I cannot concur. I understand these exceptions, respectively, as having a very ■different office and application assigned them in that, system of laws from which they are derived, from that ascribed to them in the present instance. La. Code of Prac. ch. 2, sec. 7, arts. 332, 343; 1 La. 315; 8 Martin, N. S. 280; .Code of Prac. ch. -.2, sec. 7, arts. 330 to 346 inclusive, and authorities cited.
The distinction taken by the court is that recognized by the English law between their special and general demurrers, and not that of the civil law respecting dilatory and peremptory ■exceptions; and it is a distinction which in my conception has ■no existence in our remedial system. In my. opinion, there is properly no general demurrer known to our laws; but exceptions should always assign specially the causes or grounds of objection. A different practice has, however, prevailed and ■become so inveterate, that I have felt constrained to yield to it my opinion of what the practice ought to be, believing that •a practice of such universal prevalence and so long acquiesced in ought not now to be disturbed. '