Spence v. Onstott , 3 Tex. 147 ( 1848 )

Mr. Justice Wheeler

delivered the opinion of the court.

The only questions presented by the record which it is deemed material to notice relate to: 1st. The amendment of the answer; and 2d. The instruction to the jury.

1st. Under the 20th section of the act of 1836 [1 Stat. 198], “establishing the jurisdiction and powers of the district court,” the 12th section of the act of 1840 [4 Stat. 88], “ to regulate the proceedings in civil suits,” and the several other acts authorizing amendments, then in force, it was, we think, beyond doubt within the discretion of the court to permit the amendment in question.

2d. Had the present been an action brought alone upon the alleged indebtedness of the defendant for money advanced, or upon a contract for the payment of money, the instruction to the jury would perhaps have been correct. But the primary object of the suit, doubtless, was the recovery of damages for the wrongful detention and conversion of the property. To this ground of action the evidence was almost exclusively directed; and it established a demand and refusal to deliver, and consequently a conversion of the property by the defendant, on the 4th of December, 1841. This, then, was the time when the cause of action accrued, and from which the statute of limitations commenced to run. The period of limitation of this action was two years [5 Stat. 184, p. 163, sec. 1], and that period had not elapsed at the time of the commencement of this suit.

The instruction given involved the assumption that the plaintiff could in no event recover for the wrongful detention and conversion of his property; it being a declaration in gen-, eral terms, that the plaintiff could not recover 'm that action unless he had proved a contract, appended to the petition, to have been made within two years, etc. This, as to the alleged conversion, clearly was error, and was well calculated to divert the attention of the jury from the real merits of the controversy; which was not so much the contract, express or implied, for the payment of money, as the alleged conversion by the defendant, to his own use, of the property of the plaintiff.

We are of opinion, therefore, that the judgment be reversed, and the cause remanded for further proceedings.