12 Tex. 95 | Tex. | 1854
The principal question presented by the record, is, whether the cause of action was barred by the statute ' of limitations. The present manifestly does not come within the statutory description of “ actions of debt grounded upon any contract in writing,” to which the bar of four years applies. It is an action upon an open account, to recover for the value of the goods furnished, and the profits accruing upon the sale of them: and if within the operation of the State, was subject to the bar upon open accounts, of two years next after the cause of action accrued. (Hart. Dig. Art. 2377.) More than two years from that period having elapsed when the suit was brought, it is clear that, if within the statute, the cause of action was barred at the time of the bringing of the suit. ■
But it is insisted for the plaintiff in error, that the present comes within the exception in favor of “ such accounts as con- t cern the trade of merchandize between merchant and merchant,” &c., (Id.) and consequently that it is not within the operation of the statute.
The words of the exception in our statute are the same as a those contained in the 3rd Section of the Statute of James. (Angell on Limitations, 145, chap. 15.) In the acts of limitations of many of the States, this exception has not been re
Bt it is insisted that the objection could not avail the defendant on demurrer. The statute, however, was pleaded. And when a jury was waived and the case submitted, the Court might well look to the issues; and the case being manifestly with the defendant upon the pleadings, it was not necessary, and would have been a useless consumption of time to have heard the evidence, when upon the pleadings judgment must necessarily be rendered for the defendant. The statute having been pleaded, and its truth appearing by the petition, judgment could not legally be rendered upon it for the plaintiff. (Hall et al. v. Jackson, 3 Tex. R. 305; Fowler et al v. Stoneum, 11 Id.)
Judgment affirmed.