Opinion
No. 2392.
November 4, 1925.
Appeal from District Court, Wilbarger County; J. V. Leak, Judge.
Action by the W. T. Rawleigh Company against C. W. Lemon and others. From the judgment sustaining defendants' general demurrer and special exceptions, plaintiff appeals. Reversed and remanded.
Cook, Cook Cole, of Vernon, of appellant.
Berry, Stokes Killough, of Vernon, for appellees.
This suit was filed January 27, 1921, and, after an appeal to this court and a reversal of the judgment ( 247 S.W. 683), an amended petition was filed April 22, 1924. In the original petition the appellant sought to recover upon an open account for merchandise sold the appellee under written contract, the payment of which was guaranteed by McDougal and Priddy. The amended petition, in addition to the action on an open account, seeks to recover, in the alternative, upon a quantum meruit, and also declares on the account as a stated account. Reference to the pleadings shows that the same items and charges appear in the amendment as are found in the original, and the same debt is sought to be recovered, in the alternative, as a stated account and upon a quantum meruit, as that declared upon as an open account.
This appeal is from a judgment sustaining the appellee's general demurrer and special exceptions urged to the amended petition, because (1) it appears that the cause of action is barred by the statute of two years' limitations; (2) that it is barred by the statute of four years' limitations; and (3) that it appears from the pleadings that the contract is unilateral and void for the want of mutuality. The amended petition does not set up a new cause of action. Tonn et al. v. Inner-Shoe Tire Co. (Tex.Civ.App.) 260 S.W. 1080; Burton-Lingo Co. v. Beyer, 34 Tex. Civ. App. 276, 78 S.W. 248. The pleading alleges that the debt was due and payable on December 31, 1919, and since the original petition was filed January 27, 1921, the action is not barred by either the statutes of two or four years' limitations. The amended petition shows that all the consideration which, under the contract, moved to the defendant, had been received and appropriated by him; that the goods had been delivered and accepted; that the appellant has wholly performed the obligations of the contract; that nothing remains to be done under it except the payment of the account by the appellee. The defense of want of mutuality is therefore not applicable. Roberts v. Anthony (Tex.Civ.App.) 185 S.W. 423; Taber et al. v. Dallas County, 101 Tex. 241, 106 S.W. 332, 13 C.J. pp. 334, 335, §§ 180, 181, 182.
We sustain all of the appellant's contentions, and reverse the judgment, and remand the cause for trial.
Reversed and remanded.