41 Tex. 143 | Tex. | 1874
This suit was brought by appellants for a balance alleged to be due and owing them for a bill of goods filled on the written request of appellee. On the trial below a jury was waived, and, by consent of parties, the case was submitted to the judge, by whom judgment was rendered in favor of appellee, upon the ground that the suit, not having been brought by appellant, within two years next after the accrual of this cause of action, was barred by the statute of limitation. In the view taken of the case by the judge, appellants’ action was not, as they insist, grounded upon a contract in writing, but was founded upon an account for the goods and wares sold appellee. In this conclusion we are of the opinion the court erred. Appellants in their petition set forth and allege as the foundation of their action appellee’s written order or request for the goods he wished appellants to forward him, and in which he expressly undertakes and promises to make prompt payment; and in connection with this order they present, as a part of their petition, a copy of the bill of goods forwarded to appellee as requested. It is undeniabty true, as appellee insists, if his order or request to forward the goods had never been filled, no action would have accrued upon it. It must also be admitted that appellants’ cause of action did not accrue until the date of the filling of the order. But we cannot perceive how these concessions tend to prove that the action is not grounded upon appellee’s written oblíga
Reversed and remanded.
