Adams v. Le Sage , 25 S.W.2d 207 ( 1929 )

R.S. Le Sage brought this suit in the district court of Young county against C. Adams, asserting four distinct causes of action. The first was upon a promissory note, dated April 2, 1924, payable in installments aggregating $394.40, to the order of Bennett Motor Company, with interest, etc. Ownership of the note by transfer from the original payee was duly alleged, the claim being limited to a balance due on the principal of $197.20. The second was upon a promissory note given by said Adams to Universal Motor Company S. A. dated June 24, 1924, and due July 24, 1924, for the principal sum of $100. Ownership of this note was alleged by plaintiff and the full amount claimed with interest and attorneys' fees. The third was upon an account alleged to have been originally due by defendant to Universal Motor Company S. A., in the sum of $300 and upon which a balance was claimed of $290. Transfer of this account from the Universal Motor Company to plaintiff and ownership by plaintiff was alleged. The fourth was for collections claimed to have been made by defendant for plaintiff, and not accounted for or paid, aggregating $60.85. The defendant, in addition to exceptions to plaintiff's petition, pleaded payment of all the indebtedness due by him to plaintiff, and specially pleaded payment of the balance of $197.20 on the $394.40 note by alleging an advance to him by plaintiff on account of the said sum of $197.20 with which he paid the note, and further pleaded, in the alternative, that if any sum was due upon account that same was barred by the two-year statute of limitation (Rev.St. 1925, art. 5526). He specially denied that he owed the account upon which a balance was claimed of $290, or the amount claimed on collections. The case was tried before a jury. Upon the answer of the jury to special issues submitted and found by them in favor of the plaintiff, judgment was given for plaintiff and entered accordingly. The defendant has appealed.

Appellee objects to a consideration of the several propositions urged for a reversal of the judgment because the appeal bond is for a penal sum of only $150, the clerk having fixed the probable amount of costs at $150, and therefore the bond is not for double the amount so fixed as required by Rev.St. 1925, art. 2265. We do not believe that for that reason we would be justified in declining to take jurisdiction of the appeal. Rev.St. 1925, art. 1840, provides that, where there is a defect of substance or form in any appeal or writ of error bond, "then on motion todismiss the same for such defect" (italics ours), the appellate court may allow the same to be amended by filing in such appellate court a new bond on such terms as the court may prescribe. A motion to dismiss for such reason, we think, should he made before submission, or at least, facts be shown to excuse the failure to do so. Otherwise, or in the absence of any motion, we are inclined to think that a defect such as this, especially if the bond is otherwise good, should be treated as waived.

Appellant's first proposition is as follows: "When plaintiff paid off the note of the Commercial Credit Company the amount became a debt of $197.20 by the defendant to plaintiff. The plaintiff paid off the note on December 29th, 1924, and the suit was filed herein November 14th, 1927, more than two years after the account was due, and defendant having plead the two years statute of limitations, the debt was barred."

It is stated that this proposition is germane to the first and second assignments of error. The first assignment of error is: "The court erred in failing to submit Special Issue No. 1 requested by defendant, said special issue reading as follows: ``Defendant's Special Issue No. 1: Did the plaintiff and defendant agree that the $390.00 Bennett Motor Company note should be charged to defendant's account and paid by defendant out of his salary? Answer yes or no. Answer.' Because the defendant had plead and proven such an agreement and the answer of the jury to the same would have given the proper legal test as to this defendant's liability, if any."

The second assignment is: "The court erred in failing to submit defendant's Special Issue No. 2 in his charge to the jury, said issue reading as follows: ``Defendant's Special Issue No. 2: If you have answered Special Issue Number One "no" then you need not answer this special issue; if you have answered it "yes" then state the date said agreement was entered into. Answer.' Because the defendant had plead and proven such an agreement and the answer of the jury to the same would have given the proper legal test as to this defendant's liability, if any."

Objection is made to the consideration of the proposition because same is not germane to the assignments, in that the proposition assumes the existence of a fact in issue and found by the jury adversely to appellant. Clearly the proposition is not germane to either of the two assignments. But, if we waive that matter and consider the proposition, it is wholly without merit because it does, in fact, assume that plaintiff paid off the balance of $197.20 on the $394.40 note, which was a fact in issue and was found by the jury contrary to the assumption. The proposition is therefore a mere abstraction, and presents no question of law arising on this particular record. Certainly it presents no question properly arising upon the record with reference to limitation.

The second and only other proposition of appellant is as follows: "Money loaned by plaintiff to defendant on open account in April 1924, due in thirty days, would be barred by the statute of limitations two years later, and where the statute of limitations was plead a recovery could not be had on a suit filed more than three years and six months after the loan was due."

This is said to be germane to the fifth assignment of error, as follows: "The court erred in submitting Special Issue No. 7 of his charge to the jury, reading as follows: ``Issue No. 7: If you have answered Issue No. 5 "yes," do not answer this, but if you have answered it "no," then answer: Did the defendant Adams, for a valuable consideration and within two years prior to November 14, 1927, agree to pay plaintiff Le Sage such balance? Answer "yes" or "no." Answer.' Because plaintiff did not plead any new agreement and this defendant, at the time, objected to the introduction of any evidence attempting to prove any such agreement and no such legal agreement as contemplated by law was ever proven by plaintiff as would warrant the submission of this issue."

It is likewise objected that this proposition is in no wise related to the assignment, and we think the criticism is merited. The proposition undertakes to present a question of limitation. The special issue objected to by the assignment apparently did not involve any question of limitation. Appellee himself did not so construe it because his objection to it, in addition to the claim that it was immaterial, was that there was no pleading of any verbal contract or agreement covering the items of $290 and $60.85, "and defendant objected to the introduction of any testimony offered to prove any such agreement, there being no pleadings to support same, and no testimony that would legally justify the submission of such issues (that is, 7 and 10) to the jury."

In other words, the objection to the submission of the special issue was that there was no pleading to support it. If appellant's answer can be construed as pleading limitation to the claim of $290, to which special issue No. 7 alone related, which is somewhat doubtful, but immaterial to the present inquiry, it is quite plain that the court submitted no issue of limitation, nor does appellant present any assignment complaining of such action. Limitation being an affirmative defense, it must, under such circumstance, be deemed to be waived. Ratcliffe v. Ormsby (Tex.Civ.App.) 298 S.W. 930; Ormsby v. Ratcliffe,117 Tex. 242, 1 S.W.2d 1084.

We are therefore of the opinion that this proposition also must be overruled.

There appearing no error in the judgment of the court, same will be affirmed, and it is accordingly so ordered.