Putman v. Wheeler & Rhodes

Robertson, Associate Justice.

The law requiring the names of the parties to be stated in a citation was not changed, but continued, by the Revised Statutes. In certain cases the service of the writ is now perfect without delivering a copy of the petition, and for this reason new features have been added to the citation. But the requirement that the names of the parties shall be stated in the writ remains as it was before, and, as it was before, has been held fulfilled by stating in the writ the partnership names of the plaintiffs, when the suit is by partners. Andrews v. Ennis, 16 Tex. 46; Dikes v. Monroe, 15 Tex. 236. This was a very liberal interpretation of the statute, and was induced by the fact that at that time a copy of the petition always accompanied the writ. Still it was an interpretation of the language, which must be considered as known to and approved by the codifiers and legislature in repeating the provision, without any change in the phraseology indicative of a purpose to change the construction. To supply the place of the copy of the petition, the number of the case, when the suit was commenced and the nature of plaintiffs’ demand are required to be stated in the writ. In other respects, the requisites prescribed in the old law, as construed, were deemed sufficient, notwithstanding the absence of the copy of the petition. If the only change had been the dispensing with the copy of the petition, the construction based upon the fact that the writ was accompanied with such copy would cease with its reason, but the legislature, in dispensing with the copy of the petition, has required the writ to contain the information deemed sufficient to supply its place, and it is not the part of a court to supplement what the lawmaking power has considered adequate, by increasing the stringency of unchanged requisites of the process. Giving the firm name of the plaintiffs was not such defect in the citation as required the reversal of the judgment. The firm name was not stated in the petition, but it was signed to the contract made part of the petition. The plaintiffs in the suit were thus identified as “ Wheeler & Rhodes,” and the writ identified the suit. There was no variance between the petition and the writ. The omission to state the firm name in the petition is a point on the pleadings, and not a defect in the process. Other defects in the writ are assigned, but none are pointed out in the brief of appellant’s counsel, and a careful examination of the writ has disclosed none to our discernment.

If the plaintiffs had been suing for a breach of that part of the contract which bound defendant to pay them the sum of $5,000 as soon as she should realize from her husband’s estate, that she had realized would be a necessary avermentinthe statement of the cause of action. The part of the contract alleged to be broken is that which, without condition, engaged the plaintiffs as the defendant’s attorneys. For this breach, which involved the repudiation of the entire contract, and prevented the plaintiffs from earning the compensation contracted for, or even suing upon the qualified promise, the defendant was immediately liable. 1 Suth. on Damages, 175.

We find no error authorizing the reversal of the judgment, and it must be affirmed.

Affirmed.

[Opinion delivered February 23, 1886.]