Blakenship v. Adkins , 12 Tex. 536 ( 1854 )

Wheeler, J.

The objection to the jurisdiction of the Court, we do not think well founded. Where it becomes necessary to sue for the recovery of an amount remaining due upon an indebtedness, originally within the jurisdiction of the District Court, if the suit is upon the original cause of action, it must be brought in that Court, though the debt may have been reduced by payment to a sum within the jurisdiction of a Justice of the Peace. For the cause of action is not within the Justice’s jurisdiction; and the defendant by pleading to it, may bring in litigation the entire cause of action. If by anything subsequent the original cause of action were extinguished ; and the amount remaining due within the jurisdiction of a Justice of the Peace had become the cause of action, it would be otherwise.

In respect to the merits of the case, we do not doubt there is error in the judgment. The argreement to refer, was for the ¡purpose only of ascertaining the value of the work and the amount of indebtedness upon the contract. When the amount had been ascertained in accordance with the contract, that was the amount which the plaintiff was entitled to demand. But he could not be turned out of Court merely because he demanded more than was due him. Whatever was due was upon the original contract and indebtedness, and that, whatever it might be, was what the plaintiff was entitled to recover. If the defendant had paid the full amount ascertained to be due in the mode agreed upon, that of course would have been a bar to the action. But that is not pretended. He pleaded a partial payment, and that he “was willing and offered to pay” the residue. But he did not bring the money into Court, or aver a present willingness to pay the balance which his plea showed to be still due and unpaid, agreeably to the award on which he relied. On the contrary he proceeded to controvert the plaintiffs’ right to demand and receive it. The instruction of the Court therefore was erroneous. It made the plaintiffs’ right to recover the amount remaining due, to depend on the sole question whether there was fraud on the part of the defendant in procuring the award." Of this there was no evidence, and could be no pretence. Because of the error in the charge of the Court, the judgment must be reversed and the cause remanded.

Reversed and remanded.