44 Tex. 470 | Tex. | 1876
Appellant brought suit against Wilkinson on an open account running in date from 1870 to 6th March, 1871.
The suit was brought on the 10th day of September, 1873. Wilkinson is alleged to he a citizen of the State of Missouri, and the proof shows that he never resided in Texas.
He was cited by publication, and came in and filed a demurrer and answer, denying all indebtedness and pleading limitation. On the 7th of February, 1874, plaintiff filed an amended petition in which this allegation occurs: "And the said Zeigler, his agent, executed his notes during his agency aforesaid, wherein the justice of the debt was duly acknowledged and promise of payment made in compliance with said demand. The said Wilkinson at all times acknowledged the agency of said Zeigler, and also the justice of said demand, and stated to your petitioner that he has arranged with his said agent to pay the same.”
This is the only allegation touching the notes. If the notes were made the basis or cause of action, it requires no argument to show that there was no such allegation in the
If the suit is to be treated as having the open account for a basis, then the execution of the notes was. a satisfaction of the account, and a recovery could not he had on it.
If the notes were of any validity at all against Wilkinson, they certainly closed the account.
There is no allegation, however, that Wilkinson “ made, executed, and delivered the notes,” either in person or by Zeigler, his agent. (Jennings v. Moss, 4 Tex., 451.)
It is treated as a suit against Wilkinson alone until the amended petition was filed, in which the prayer is made for judgment against Wilkinson and Zeigler.
The verdict is very meager. It is as follows: “ We, the jury in this case, find in favor of the plaintiff.”
This verdict would warrant a judgment against Zeigler as well as Wilkinson, yet it is rendered against Wilkinson alone.
There is no replication to the plea of limitation, and it is believed that the account was barred. If it be said that the execution of the notes took the case out of the operation of the statute, the answer is that the notes were not sued on, or were not the cause of action set out.
If the notes are sued upon, the issue will then arise whether Zeigler was or was not authorized by Wilkinson to sign the notes.
The introduction of the notes in evidence was objected to, and the objection should have been sustained. There were no allegations to charge Zeigler, and they were not made the basis of the suit against Wilkinson, and it was error to admit them in evidence. In regard to the proof as to Zeigler's agency, we will only remark that the proof does not by any means render it certain that he was Wilkinson’s agent for any purpose connected with this debt. The account is made out against Zeigler.
The notes do not purport to be the notes of Wilkinson,
Reversed and remanded.