Summary
In Cotter et al. v. Parks et al., 80 Tex. 539, 16 S.W. 307, 308, in disposing of a question like that before us, the court used this language: "The suit as amended was for the same money upon a demand having its origin in the same transaction, but depending upon different evidence for its establishment.
Summary of this case from Ferguson Seed Farms v. FergusonOpinion
No. 7078.
Delivered April 21, 1891.
1. Same Cause of Action — Amendment — Limitation. — Parks sued Cotter, Truelove Co., bankers, for an amount of money deposited with them and not properly accounted for. The amendment was for the same money upon a demand having its origin in the same transactions, but depending upon different evidence for its establishment. Held, that the amendment did not set up a new cause of action. And as the cause of action was not barred when the original petition was filed, the statute of limitations did not apply to any part of the amount sued for. See example.
2. Practice — Fact not Alleged. — Suit, against bankers for money deposited by the plaintiff and misappropriated by them. They pleaded limitation and general denial. On trial the defendant offered testimony prove overdrafts by plaintiff and an agreement to pay interest. Held, that as there was nothing in the answer asserting the right to recover interest, the testimony was rightly excluded.
3. Practice. — In an action against several defendants whose liability to the plaintiff is not identical, it is proper practice for the jury to ascertain the liability of each defendant. This separation of liability should be preserved in the judgment.
4. Error in Amount of Verdict — Remittitur. — An inadvertent error in the amount of the verdict which is at once corrected by a remittitur is no ground for reversal. 5. Costs — Amendment. — It was not error on recovery by plaintiff in an action for money misappropriated to tax the entire costs against the defendants, although an amendment had been made by the plaintiff whereby different testimony would be required to support the demand sued upon, the amendment alleging the same transaction as the basis of the liability of defendants.
APPEAL from Johnson. Tried below before Hon. J.M. Hall.
The opinion states the case.
Bledsoe Patten, for appellants. — 1. The court erred in overruling and in not sustaining defendants' first special exception to plaintiff's first amended original petition, because it clearly appears from an inspection of the pleadings in this cause that the alleged indebtedness claimed therein, to-wit, the sum of $223.91, by reason of an alleged balance due on account with these defendants, is an amount under and not within the jurisdiction of this court but is exclusively cognizable by the County Court.
2. The court erred in overruling the second special exception of these defendants to said first amended original petition, because it clearly appears from an inspection of plaintiff's pleadings, to-wit, plaintiff's original and amended original petition, that said alleged balance of $223.91 is a new, separate, and distinct cause of action, not alleged, claimed, or set tip in plaintiff's original petition, and is therefore barred by statute of limitations. Woods v. Huffiman, 64 Tex. 98 [ 64 Tex. 98]; McRee v. Brown, 45 Tex. 503; Wooldrige v. Hathaway, 45 Tex. 380; Thomas v. Browder, 33 Tex. 783.
Crane Ramsey, for appellee Parks. — 1. Appellant's exceptions were rightfully overruled. The amended petition declared on the same contract, for the same amount, and in favor of and against the same parties. The only difference is that the amended petition set up facts showing more clearly appellee's right to recover as successor to the partnership of O. F. Parks Co., and also that while the appellants and Bachman were due him $2692.61, that a part of it the appellants still retained. Thouvenin v. Lea, 26 Tex. 612; Hill v. Clay, 26 Tex. 650; Becton v. Alexander, 27 Tex. 659 [ 27 Tex. 659]; Kinney v. Lee, 10 Tex. 155; Pridgen v. McLean, 12 Tex. 420; McIlhenney v. Lee, 43 Tex. 205; Lee v. Boutwell, 44 Tex. 152 [ 44 Tex. 152]; Jones v. George, 56 Tex. 149; Railway v. Davidson, 68 Tex. 370.
This suit was brought by O.F. Parks against W.F. Bachman, and Cotter, Truelove Co.
The original petition, which was filed on the 12th day of September, 1885, stated plaintiff's cause of action substantially as follows: That in July, 1884, plaintiff and defendant Bachman formed a partnership for the purpose of buying and selling grain in Alvarado, Texas, under the firm name of O. F. Parks Co.; that their contract was that plaintiff should furnish all the money required for conducting the business and Bachman was to manage it; that the defendants Cotter, Truelove Co. were bankers at Alvarado, and it was agreed that the money furnished by plaintiff should be deposited with them and drawn out by Bachman by checks in the firm name of O. F. Parks Co.; that in order to protect plaintiff from loss, by the bad faith of his partner, it was agreed between them, and was known and consented to by Cotter, Truelove Co., that no such checks should be drawn except in payment for grain purchased, and that all of them should be marked with the word "grain;" that defendants Cotter, Truelove Co. promised plaintiff that they would not pay any checks drawn by Bachman in the name of his firm unless they were so marked; that said partnership continued until the _____ day of March, 1885, during which time plaintiff deposited with defendants Cotter, Truelove Co. the sum of $43,523.62 in pursuance of the terms of said contract; that in violation of said agreements defendants Cotter, Truelove Co. paid drafts drawn by Bachman, in the name of his firm, amounting to $5165.80, which were not for the purpose of paying for grain, nor so marked, and were not used in the partnership business of said O. F. Parks Co., which was done without the knowledge or consent of plaintiff, as was well known to said Cotter, Truelove Co.; that subsequently Bachman paid plaintiff $2000 of said sum, leaving unpaid the remainder thereof, to-wit, $2692.61, for which sum he prayed judgment against all of the defendants. Attached to said petition there were exhibits to show the various items of said transactions, as plaintiff claimed that they occurred.
On the 27th day of April, 1888, plaintiff filed an amended original petition, containing the same general statement of his cause of action and referring to the same exhibits, charging that the sums of money that lie deposited with the defendants Cotter, Truelove Co. amounted to "about" $43,000, of which there was misappropriated by Bachman "not less" than $51615.80, and that plaintiff had received "about $5400 less than he had deposited with defendants;" that of the amount so deposited with Cotter, Truelove Co. they had failed and refused to pay to plaintiff or to O. F. Parks Co. the sum of $223.91, which sum he alleged was still due; that the partnership of O. F. Parks Co. had been dissolved and plaintiff had become and was the sole owner of all of its assets. Plaintiff specially prayed judgment for said sum of $223.91, with interest.
The answer of Cotter, Truelove Co. contained exceptions, general and special, presenting the following issues:
1. An objection that the demand for $223.91 was not within the jurisdiction of the District Court.
2. That the cause of action for the last named amount was barred by the statute of limitations of two years.
They further pleaded as follows: (1) A general denial, and (2) the statute of limitations of two years as to the demand for $223.91.
The exception were overruled, and the jury returned two separate verdicts, one against, Cotter, Truelove Co. for $233.91, with interest, and the other against Bachman for $2458.70, with interest.
The court entered up a judgment according to the verdicts, but directing that any payment or collection made of either defendant should inure to the benefit of the other.
The plaintiff filed a remittitur of $10 and the interest thereon of his judgment against Cotter, Truelove Co.
Appellant's first, assignment of error is that the court erred in overruling his objection to the Jurisdiction as to plaintiff's demand for $223.91, and his second one is that his exception of the two years statute of limitations to the same demand should have been sustained.
The substance of plaintiff's cause of action as it was described in his original petition was that he had deposited with Cotter, Truelove Co. a certain amount of money, a part of which had been lost to him by its being misappropriated by the joint, wrong of all of the defendants, so as to make each and all of them responsible to him therefor.
The change made by the amended petition was that instead of the whole amount unaccounted for having been misappropriated by all of the defendants, $223.91 of said sum had never been paid out or accounted for in any way by the defendants Cotter, Truelove Co., and that they were liable to him separately for that much of the original cause of action. The suit originally was for an amount of money deposited by plaintiff with Cotter, Truelove Co. and not property accounted for. The suit as amended was for the same money upon a demand having its origin in the same transactions but depending upon different evidence for its establishment.
The amendment did not set up a new cause of action, and as the cause of action was not barred when the original petition was filed the court ruled correctly on that issue.
When the amendment set up against Cotter, Truelove Co. the separate demand for $223.91 out of the original demand, it also continued to assert against them the balance of the original demand upon the facts first asserted, and the combined demanded being within the jurisdiction of the court there was no error in so holding.
As no objection of misjoinder of parties and causes of action was made against plaintiff's amended pleading by the amended pleading of Cotter, Truelove Co., that question was not before the District Court, nor before us now. What we have said may dispose of appellant's third assignment, which relates to the refusal of the court to charge upon the statute of limitations.
The defendants Cotter, Truelove Co. offered to prove a contract with the plaintiff to pay them interest on their account with him, which the court refused to permit because there was no pleading to authorize the evidence. Upon a careful inspection of the pleadings we have been unable to find any allegation that the plaintiffs were indebted to said defendants for interest or any pleading under which the excluded evidence could have been properly admitted.
By the sixth and seventh assignments appellants claim that the verdict was contrary to the pleadings and the evidence, because the pleadings charge that their liability originated in deposit of money made with them by the plaintiff, while the evidence shows that he never deposited any money with them, and also that they paid the money out for and at his request and that he is still indebted to them.
Plaintiff's pleadings were, in general terms, as stated, but the exhibits attached to and made parts of them explained the transactions in detail and there was evidence introduced to sustain them. By one of defendants' witnesses it was proved that for "the first month or two O. F. Parks Co. had money on deposit to meet their drafts," and that "Cotter, Truelove Co. were authorized to draw on O.F. Parks at Waxahachie for overdrafts of O. F. Parks Co., and they did draw on him at various times for such overdrafts and they were promptly paid." The evidence was introduced without objection, and was sufficient to overcome the objection now urged.
The eighth assignment is that the judgment is not supported by the verdict because separate verdicts were returned which do not support a joint judgment. The answer to the objection is that the defendants' liabilities are separated and distinguished in the judgment just as they are in the verdicts. It is further complained that it is evident that the jury intended to find against Cotter, Truelove Co. only the sum of $223.91. It is evident that the finding should not have been for more than that sum as principal, and it is quite clear that the finding for $10 more was the result of an inadvertence which was overlooked at the more but was afterward promptly remedied by the entry of a remittitur.
We think there was no error committed in adjudging against defendants the entire costs of this suit.
The judgment is affirmed.
Affirmed.
Delivered April 21, 1891.