Thompson v. Swearengin , 48 Tex. 555 ( 1878 )

Moore, Associate Justice.

The manner in which this case was tried in the court below is neither to be commended nor encouraged, though it was in accordance, it seems, with the agreement of the parties. A jury was waived, and the case submitted to the presiding judge on the facts as well as law; but instead of ruling upon the exceptions to the petition before- hearing the evidence, or passing upon the objections taken during the progress of the trial to the admissibility of evidence, .all the testimony offered by the parties was admitted, subject to the decision of the court on its final disposition of the case. The result was, that after the delay and expense of a hearing of the entire case on the facts as well as law, the court sustained the defendant’s exceptions to the plaintiffs’ petition,..and dismissed the action. The practical effect of this course of proceeding has been to deprive the plaintiffs of the privilege of amending their pleadings, if they desired to do so. It is equally obvious, if the case had been decided upon the facts instead of the law, that the court might have deemed the objections to some of the testimony well taken; and yet, as the exceptions were not ruled upon when made, the party whose testimony would have been excluded would be deprived of the opportunity of removing the objection by proving the fact sought to be established by other evidence. But however disastrously may have been the result of such a mode of trial, as it was at them instance or by their consent, the appellants have no just cause to complain.

It does not appear, from the record, upon what precise ground the court held the plaintiffs’ petition and amended petitions defective. We infer, however, from the briefs of counsel, that it must have been upon the hypothesis that a recovery was sought in the amended petition on a different account from that on which the suit was brought, and that this account had not been presented to the administrator for approval or rejection, as a claim against the estate of his intestate; and, also, that it appeared, from the petition, to be barred by limitation when the amendment was filed; or that the amended petition was, in effect, a new and different suit from that presented by the original petition, because, by amendment, it is shown that the account sued on was contracted with plaintiffs and A. B. Thompson, who, however, died previous to the filing of the original petition, while doing business under the firm-name of A. B. Thompson & Co. Yet it is to be inferred, from the original petition, that the account on which a recovery was first sought was contracted with the plaintiffs alone, in said partnership-name of A. B. Thompson & Co.

Upon neither of these grounds can the judgment of the court be sustained. Evidently the account exhibited in the amended petition is the identical account declared upon in the original petition. The only difference is, that the original account states the amount or value of the different items, when contracted in gold, at the corresponding value of currency at the. time'of the account of such item; while in the account as made up in the amended petition this is not done, but each item is entered just as it is in the original account, except that it is charged in gold or currency, as contracted, without stating its corresponding or convertible value in currency or gold. This was done to conform, as plaintiffs supposed, to the views expressed by this court on a former appeal. (See opinion in record.) All that can be said of it, is that it is a different statement of the account; but still it purports to be, and is in fact, the same account which was presented to the administrator and declared upon in the original petition.

The other ground is not, to my mind, so entirely void of force; and if the court was controlled in matters of this kind by the technical rules of the common law, it may be that this objection would warrant the judgment. Unquestionably the original petition, if it does not distinctly aver, certainly implies that the account declared upon was contracted with the plaintiffs, J. W. and Cyrus Thompson, as partners, doing business in the firm-name .of A. B. Thompson & Co.; while the amended petition alleges that it was contracted with A. B., J. W., and Cyrus Thompson, as partners, under the like firm-name. A variance of this character, between the contract described in the petition and that offered in evidence, has frequently been held fatal. (Chitty’s Pl., 306; 4 B. & A., 274.) But evidently the correction, by amendment, of any misdescription that would be fatal on an objection for variance between the allegata and probata, cannot be held to be a new suit. And while there are decisions of this court that tend strongly to support the objection, (Henderson v. Kissam, 8 Tex., 46; Whitehead v. Herron, 15 Tex., 127,) the contrary seems to have been directly decided in the case of Pridgen v. McLean, 12 Tex., 420, and to be maintained by other later decisions. (Williams v. Huling, 43 Tex., 113; McIlhenny v. Lee, Id., 205; Lee v. Boutwell, 44 Tex., 151; Kendall v. Riley, 45 Tex., 20.) Both the original and amended petition alleged that the account was made with A. B. Thompson & Co. It was properly verified, and presented to the administrator as an account due that firm. It was payable to the plaintiffs, and they alone were authorized to bring suit upon it when the original petition was filed. The amended petition did not declare upon a different account, or allege a liability on it to different parties, but corrected the statement in the original petition, in regard to the parties composing the firm of A. B. Thompson & Co., with whom it was contracted. By this change, we hold, under the authority of the previous decisions of this court, it cannot be said that a different cause of action from that presented by the original petition is set up.

Other questions are suggested in the briefs of counsel, the decisions of which might possibly hasten the final determination of the case; but as they were not passed upon in the court below, any action upon them by us would seem to be premature.

The judgment is reversed and the cause remanded.

Reversed and remanded.