63 Tex. 36 | Tex. | 1885
Three grounds of special demurrer were sustained below to the amended petition of appellants, and the cause dismissed, no amendment to the petition having been offered.
As to the point made, that the amended petition was in violation of rule 13 prescribed for the government of district courts, it is sufficient to say that the amended petition does point out the instrument it proposes to amend, viz.: the original petition filed June 26, 1882. This rule does not require that the new pleading shall state in terms that it is a substitute for the one amended, but it is made such substitute by force of the rule itself. It is clear from a reading of the present amendment that it was intended to take the place of the original pleading to which it refers, and that it does so effectually by restating fully the cause of action relied on by the plaintiffs below. This exception should not have been sustained.
The contract set forth in the petition did not show that it was one not to be performed within a year. The expenses incurred by the appellants for their co-plaintiffs in the suit for the “La Huerta ” lands were to be refunded when that suit was decided, and the land recovered in it partitioned among the plaintiffs. It was not absolutely necessary that these events should not take place within one year; and in such cases it is well settled that the agreement is not required by the statute of frauds to be in writing. Thouvenin v. Lea, 26 Tex., 615, and authorities there cited; Thomas v. Hammond, 47 Tex., 43. Moreover, although the contract be such as comes within this provision of the statute of frauds, the pleading that declares upon it
Upon a close and thorough examination of the bill of particulars attached to the amended petition, we are unable to discover in it the defects for which a special demurrer was sustained. Every item seems to be dated with sufficient certainty, and all appear to be for expenses which naturally arise in the conduct of a lawsuit such as the one brought for the benefit of the appellants and appellee, as it is described in the petition. The- special exception taken to the bill of particulars points out no one item which is not stated with sufficient particularity, or which was not sufficient as a basis for the present action, and we see no grounds upon which the exception was sustained.
We are of opinion that the court below erred in sustaining the exceptions to the amended petition, and for this error the judgment will be reversed and the cause remanded.
Reversed and demanded.
[Opinion delivered January 16, 1885.]
