37 Tex. 167 | Tex. | 1873
The system of pleadings and practice under our law, as heretofore held by this court, is exceedingly liberal, extending to both plaintiff and defendant every reasonable facility for presenting in one action every kindred demand, or matter of defense, in order that parties may have adjusted questions of dispute or difference, with as little trouble, delay, and expense, as possible. And for the purpose of furthering these desirable objects, the courts have been quite liberal in permitting amendments of pleadings, both in regard to the form and subject matter pleaded. It has, therefore, frequently been held that amendments will be allowed, under proper restrictions, up to the commencement of the trial, and the party pleading may be permitted to present his demand, or defense, in as many, or any, forms he may think proper, provided he does not thereby infract any recognized principle of law; or he may, by amendment, subject to the permission or order of the court, present new matters for adjudication, thereby increasing or diminishing his demand, or, under certain restrictions, may, by amendment, present an entire new cause of action. And so far ,as the real cause of action is concerned, we are unable to appre•ciat^e the force of the argument, that where a party has brought suit on an open or unsettled account, he may not afterwards amend, and set up the fact that the account had been fully and
We are of the opinion that the allegations in the amended petition in this case, are insufficient to charge appellant with the amount found due by the alleged settlement at Galveston. We are also of the opinion that the testimony of Neil, in regard to the acquiescence in, and approval and adoption of that settlement, by all or any of the parties thereto, is too indefinite and uncertain to constitute the basis of any judgment. It is true, he states that defendant Reed acknowledged the indebtedness of the foregoing amount to plaintiff, but he fails to state to whom this acknowledgment was made, or under what circumstances, and he afterwards qualified that statement by saying that he understood that all acquiesced in his settlement. From this we conclude that the parties employed Neil to examine and make a statement of the account between them, and still reserved the right to adopt his statement as a settlement or not, at their pleasure; and this opinion is greatly strengthened by the testimony of McGrew and Scott. If this be a true interpretation of the testimony of Neil, then appellant was not bound by that statement, without a definite and specific agreement to abide by the same, or to pay the sum then found due.
But, if appellant made such a specific agreement to abide by the settlement made by Neil, or to pay the sum he found due, then there was error in the verdict of the jury; for, if he was hound by that settlement, then he was hound for the full amount found due, and not for one-half, as found by the jury. And
But, upon an examination of all the testimony, we are unable to find any sufficient testimony to sustain even the judgment which was rendered. It appears from the petition of appellee that he entered into an equal partnership to share the
The judgment is reversed and the cause remanded.
Reversed and remanded.