Cameron Automobile Co. v. Berry , 1917 Tex. App. LEXIS 933 ( 1917 )

This suit was brought by appellant against appellee in the justice court to recover on a sworn account. Judgment was rendered against appellee for $128, from which he appealed to the county court.

In the county court appellant pleaded orally in answer to the plea of the two-year statute of limitation, theretofore filed in the justice's court by appellee, that the said account was "made in mutual current trade between merchant and merchant, not that the same is not, therefore, barred by limitation, but that the four-year statute would apply." It further pleaded that appellee was out of the state some of the time during which this cause of action might have been maintained, and also pleaded that before the two years had elapsed from the time said debt was due, defendant promised and agreed in writing to pay said account. Exceptions were inter-posed to said pleas by appellee, which were sustained by the court, and the appellant refusing to amend judgment was rendered for appellee, from which this appeal is taken.

1. The court erred in sustaining appellee's exception to paragraph 1 of appellant's pleading that the account sued on was a mutual current account made between "merchant and merchant." When accounts are so made the statute fixed four-year limitation to bar an action, and the two-year statute does not apply. Article 5688, subd. 3, R.S.

2. The court also erred in sustaining exception to paragraph 3 of appellant's pleading, where it was alleged "that appellee was out of the state some of the time during which this cause of action might have been maintained."

3. The two foregoing pleas 1 and 2 were made to defeat the two-year statute of limitation though made in the county court on appeal. They set up no new cause of action, and if it were shown by evidence on the trial that the transactions were between merchant and merchant, or that the appellee was out of the state a sufficient time to prevent the statute running, appellant was entitled to recover. R.S. 5702.

4. In an appeal from the justice's court to the county court the pleadings being oral in the justice's court, an amendment thereto may be made orally and such pleadings need not comply strictly with the rules of pleading as when the case originated in the county court. Barnes v. Sparks, 62 Tex. Civ. App. 451, 131 S.W. 610.

5. There was no error in sustaining the exception to the paragraph where the appellant alleged a new promise which renewed the account. This constituted a new cause of action, and it is not permissible to so plead, such promise not having been pleaded in the justice's court, but pleaded here for the first time.

6. For the error in sustaining the two exceptions above mentioned, the judgment is reversed, and the cause remanded.