Trammell v. Swan

25 Tex. 473 | Tex. | 1860

Wheeler, C. J.

Our opinion upon one question presented by the record will require a reversal of the judgment, and will, therefore, supersede the necessity of an authoritative decision upon other questions raised by the assignment of errors. We think it free from doubt that the separate answer of the defendant Walling presents a good defence to the action as to him. If, as alleged, the pretended sale of the goods, for which the note was given, was not a real but a merely simulated sale, and the property in the goods did not pass to the pretended purchaser, and the defendant Walling was induced to execute the note in ignorance of the facts, and under a deception practiced upon him by the other parties to the note, it certainly created no binding obligation upon him. A. party can not be bound by an act into the doing of which he has been thus drawn by false colors held out to him, and under a supposition that he is acquainted with all the facts, when they have been suppressed by the parties. The procuring of his signature, under the circumstances stated in the answer, operated a virtual fraud upon the defendant, and avoided the contract as to him. (1 Story’s Eq., § 383.) The only matter of doubt is, whether the exceptions to this answer were brought to the attention of the court, and embraced in the ruling of • the court upon the answers of the defendants. It is insisted by counsel for the appellee that they were not;' and upon this point we have entertained doubts. But whatever doubt there may be as to the fact, we think it can not be safely affirmed upon the record, that the answer in question was not embraced in the ruling of the court upon the exceptions. This answer was particularly designated and pointed to by the exceptions; and the language of the entry of the judgment is, that the exceptions to “the answers of the defendants are sustained to such extent as to reduce said answers to pleas of payment in money,” &c. This language of the entry is susceptible of different interpretations; but as the exceptions extended to all the answers of the defendants, and the entry of the judgment upon the exceptions does not distinguish between them, we think it would be going too far to say that all were not embraced in the judgment. We have considered all the material questions in the case, and incline to the opinion that there is no other error in the judgment; and think it proper tyintimate this opinion in view of another trial, as the questions have been very thoroughly examined by counsel in argument. It will not be necessary at present to go at length into the reasoning upon which we found our opinion. It'will suffice to say, that as the capacity in which the plaintiff sued and sought a recovery in the action was not put in issue by plea, it was unnecessary on his part to prove his representative character, or his right to recover in that character upon the trial. (Clifton v. Lilly, 12 Tex. R., 130; Id., 112.) The rulings of the court, therefore, upon evidence offered for that purpose, are immaterial. Neither was there any issue before the jury, after the ruling of the court upon the exceptions to the answer, touching the consideration for which the note Was given. It was averred that the note was the property of the estate of the plaintiff’s intestate, and this was not denied or put in issue by the pleadings. There was, therefore, no necessity to prove it. It would probably be found, upon examination, that there is no error in the rulings upon the admission of the evidence; but they are not material.

Whether the suit was brought by the plaintiff in- his own right, or in his representative capacity, was material only in reference to the attempted defence of the statute of limitation; and we are of opinion that the plea of the statute was not interposed in time, and that on that ground the court did not err in sustaining exceptions to the plea. The defendants had had ample time to plead. The court had ruled upon exceptions to the pleadings, and upon amendments, after the cause had been called for trial; and we think the court might well refuse to entertain further amendments. There is a limit to the right of amendment; and where time and opportunity have been afforded to remedy defects in the pleadings, parties have not. the right to delay the trial and hinder the progress of the business of the court for that purpose. As the defence of the statute was not pleaded in time, it is unnecessary to examine the case in reference to that defence.-

We think the court ruled rightly upon the pleas of payment. The statute contemplates an order of the court to enable an administrator to receive claims in payment of a debt due the estate. (O. & W. Dig., Art. 750.) Parties are presumed to know the law; and the defendant in giving, as well as the administrator in receiving, the notes and accounts in payment of the debt due the estate, acted in violation of the law; and the doctrine of estoppel in pais has no application to the case.

We are of opinion that the judgment be reversed and the cause remanded for further proceedings.

Reversed and remanded.