Bigham v. Talbot & Cropper , 63 Tex. 271 ( 1885 )

Watts, J. Com. App.

This is the third appearance of this case before the supreme court, and each time upon new pleadings by the appellees. They first sued upon the Wood burn contract, as the assignees thereof, claiming a performance upon their part with all its terms. After the case was first reversed and remanded, appellees on, to wit, February 9,1880, filed their first original amended petition, by which they declared alone upon a contract made by and between appellant and appellees. On the second appeal, it was held that this amended petition set up a new cause of action. Thereafter, on the 3d day of September, 1883, appellees filed their second amended original petition, in which they sue upon the Wood burn contract as the assignees thereof, claiming, as in the original petition, a compliance upon their part with all its terms, and a failure and refusal upon the part of appellant to pay the amounts due thereon. They also alleged that the Woodburn. contract and the several successive assignments and transfers of the same, and attending agreements, were made by and between all the parties at interest, including appellant.

To this last amended petition appellant excepted specially upon the ground that the cause of action therein asserted was, by the affirmative allegations in the amended petition contained, shown to be barred by limitation.

This special exception was by the court overruled and the point saved by bill, and that ruling is now urged as erroneous.

As shown by the amended petition the Woodburn contract was made April 10,1874; that it was assigned by Woodburn to Over-street and Talbot, June 18, 1874; that in August, 1874, Overstreet sold and assigned his interest in the contract to appellees.

On the 30th day of June, 1875, the term for carrying the mail as provided for by the Woodburn contract expired; and it is claimed that the money was due to appellees within a reasonable time thereafter.

IsTow if, as claimed by appellant, the second amended petition asserted a new cause of action, which would be subject to the operation of the statute of limitation, then the exception was certainly well taken, and the court erred in overruling the same.

As heretofore remarked, the cause of action distinctly asserted by the first amended petition was for an amount of money claimed to be due appellees from appellant for carrying the United States mail on certain designated routes, by reason of a contract made and entered into by and between appellees and appellant on the 28th day of October, 1874. While that asserted by the second amended petition was for an amount of money claimed to be due them from appellant for carrying the United States mail upon the same routes, by reason of the contract made and entered into by and between appellant and Woodburn, dated April 10, 1874, and assigned by Woodburn to Overstreet and Talbot, and by Overstreet to Talbot & Cropper. This was also the same cause of action that was asserted by the original petition.

That there are distinct causes of action would seem to admit of no question whatever. If, however, there had been any allegations in the first amended petition in any way retaining, even as part of the cause of action therein asserted, that which was asserted by the original petition, and afterwards reasserted by the second amended petition, that would have been sufficient to prevent the running of the statute after the original petition was filed. But such is not the fact. The "Woodburn contract was entirely abandoned in the first amended petition as constituting the cause of action, except alone as an inducement for the §192 claimed by reason of the acceptance.

That contract is not declared on as constituting the cause of action asserted by the first amendment, so as to retain it before the court as such. The effect of the first amended petition upon that cause of action was the same as if a non-suit had been entered. In other words, the statute commenced to run when the money became due, and continued to run until the filing of the second amended petition. From the allegations in this second amended petition it affirmatively appears that about eight years had elapsed between the accrual of the cause of action and the filing of the amendment.

Hence it appears that the special exception is well taken, and that the court erred in overruling the same.

There can be no question but that the objection to the evidence of the witness McGrew was well taken. .

A certified copy of t.he record is higher and better evidence of the contents of the record than the statements of witnesses. The court erred in not excluding that evidence. Stafford v. King, 30 Tex.; 257; Williams v. Davis, 56 Tex., 250.

Our conclusion is that the judgment ought to be reversed and the cause remanded.

Reversed and remanded.

[Opinion adopted February 6, 1885.]