Kelsey v. Myers

The writer concurs in the disposition of the appeal solely upon the authority of McDonald v. Cabiness, 100 Tex. 615, 102 S.W. 721, and the other cases cited in the opinion by Judge LESLIE. It appears to me that McDonald v. Cabiness and most of the other cases are not distinguishable from this upon any sound principle. Unless, however, the pleadings in each of said cases are properly to be regarded as alleging a contract to which only the plaintiff and the defendant, against whom recovery was sustained, were parties, then I am equally unable to perceive any distinction in principle between this case and McAlister v. Bivings, 29 S.W.2d 853, decided by this court only a few weeks ago, and the long list of cases therein cited as authorities. In the last-named case we said: "By plaintiffs' pleading the defendant was charged upon a contract consisting of an unconditional personal promise. The findings of the trial court, which are unchallenged and must therefore be looked to solely as the basis of the judgment, show that the agreement was conditional. Plaintiffs could only recover upon proof of the contract alleged." The following cases were cited in support of that statement: Morris v. Kasling, 79 Tex. 141, 15 S.W. 226, 11 L.R.A. 308; W. U. Tel. Co. v. Smith, 88 Tex. 9, 28 S.W. 931, 30 S.W. 549; Stewart v. Gordon,65 Tex. 344; Shipman v. Fulcrod, 42 Tex. 248; Gammage v. Alexander,14 Tex. 418; Brown v. Martin, 19 Tex. 344; W. U. Tel. Co. v. Swearingen,95 Tex. 420, 67 S.W. 767; Padgitt Bros. Co. v. Dorsey (Tex.Civ.App.)194 S.W. 1124; Bagley v. Brack (Tex.Civ.App.) 154 S.W. 247; Letot v. Edens (Tex.Civ.App.) 49 S.W. 109; Loudon v. Robertson (Tex.Civ.App.)54 S.W. 783; D. H. Adams Co. v. T. P. C. O. Co. (Tex.Civ.App.) 275 S.W. 1100; Blum v. Sams (Tex.Civ.App.) 250 S.W. 760; Atlas Torpedo Co. v. U.S. Torpedo Co. (Tex.Civ.App.) 15 S.W.2d 150; Kildow v. Irick (Tex.Civ.App.) 33 S.W. 315; J. I. Case Plow Works v. Morris, 17 Tex. Civ. App. 6, 42 S.W. 652; McConnell v. Payne Winfrey (Tex.Civ.App.) 229 S.W. 355; Stuart v. Calahan (Tex.Civ.App.)142 S.W. 60; Nunn v. Townes (Tex.Civ.App.) 23 S.W. 1117; W. U. Tel. Co. v. Byrd, 34 Tex. Civ. App. 594, 79 S.W. 40.

In my opinion, if there is any principle of law so elementary and certain that it ought to be regarded forever beyond question, that principle is that one who brings suit to recover upon a contract cannot recover upon proof of another and materially different contract than the one alleged. A note or other contract, when suit is brought to enforce the rights of the plaintiff therein, is not merely the evidence to prove the existence of a cause of action, but it is the cause of action itself, or if not the whole of it, at least a material part thereof. Such is the necessary import of certain decisions, as, for instance, those holding that where a note is given for a preexisting indebtedness the right of action on the original indebtedness is thereby suspended until default in payment of the note, when arises the right of election to sue upon the note or upon the original indebtedness. Otto v. Halff Bros.,89 Tex. 384, 34 S.W. 910, 59 Am. St. Rep. 56; Casey-Swasey Co. v. Anderson, 37 Tex. Civ. App. 223, 83 S.W. 840. The very existence of such right of election is dependent upon the existence of two inconsistent causes of action of which certainly the note is one. The distinctness of the two causes of action is such that proof of one is wholly unavailing when only the other is alleged. Casey-Swasey Co. v. Anderson, supra. If then a contract, when sought to be enforced, is the cause of action, it follows that, if on may be permitted to sue upon a contract and recover upon proof of another and different contract, he is thereby permitted to assert one cause of action in his suit and have judgment upon another cause of action. That this cannot be done is so well established as an elementary principle of our jurisprudence as rightly to be called a legal axiom. The great number of decisions, of which those cited in McAlister v. Bivings, supra, are examples, forbids the notion that our courts have deliberately and consciously intended to repudiate that principle. Yet it must be confessed that the opinion in McDonald v. Cabiness, supra, is extremely difficult to harmonize with a recognition of such principle. It seems that the Court of Civil Appeals [98 S.W. 943] in that case felt justified in construing the pleadings as having alleged a contract between the plaintiff and each of two other parties, which, if correct, it is easily seen authorized a judgment against one of them without reference to the other. Under that view the question is simply one of the construction of pleadings and the question here presented not involved. But, in the Supreme Court complaint was made of that construction of the pleadings and upon that point the Supreme Court said: "We are not prepared to hold that the Court of Civil Appeals erred in its construction of the pleading as to the matter of which complaint is made, but think itunnecessary to decide the point." (Italics ours.) The statement of the reason it was unnecessary to decide the point seems to support the proposition that, upon allegations of a contract to which, for example, A was one party and B and C were the other parties, recovery could be had upon proof of a contract to which the only parties were A and B. That seems to be the construction that later decisions citing that case have placed upon it. If such be the proper interpretation of that decision and still it be true that same is not inconsistent with the elementary principle that one cannot sue to recover upon one cause of action and have judgment upon proof of another and different cause of action, there must exist some refinement of distinction of a nature so subtle as to be beyond the grasp of the writer's mental equipment. Upon the question of the identity of a contract or cause of action, can it be said there is no lack of identity where the contract alleged is one to which A is party of the first part and B and C are parties of the second part, and the proof is of a contract to which A is party of the first part and only B is party of the second part, and yet that there is a want of identity where the contract alleged is the offer (and acceptance) of a reward for the capture of A, and the contract proved is the same except it is for the capture and conviction of A? Morris v. Kasling, supra.

If there be any possible basis of distinction, it seems to me that it is so artificial, so incapable of the application to it of a definite principle, as that the inevitable consequence of an attempt to apply it is necessarily an ever-increasing uncertainty and confusion.

The writer recognizes that the propriety and wisdom of his policy of calling attention from time to time to apparently conflicting lines of decision may be debatable. The likelihood, if not the certainty, that his motives will be misunderstood and misconstrued, is fully appreciated. Maybe just a word in attempted justification or excuse will be pardoned. Whether right or wrong, I am singularly out of accord with the general hue and cry for judicial reform. Some of the most needed reforms, I think, call for no constitutional amendments or legislative enactment. Some of the most important reforms, not only in matters of procedure, but in the administration of substantive law, can best be brought about, I think, by the courts giving more attention to the elementary principles of law which are permanent and unchanging, and less attention to the ascertainment and following of what has been held in particular cases. Time after time it is found in the investigation of questions that some expression, mere dicta, perhaps, in a case, has been the beginning of a parallel line of decisions which are in principle in direct conflict with another line of decisions and always resulting in uncertainty which, in turn, becomes the source of increasing litigation. I have an idea that the intermediate appellate courts can perform a most important service to the judiciary by calling attention, as occasion arises, to these matters, to the end that our court of last resort may have the same in mind for whatever, if anything, they may be worth in the solution of its problems. Unless badly self-deceived, the writer has no other motive, in thus giving free and independent expression of his views, than thus to contribute his "mite" to the improvement of our judiciary. The idea may be a mistaken one, and as to that I am entirely open-minded. If and when I may be convinced that such is the case, the policy will be discontinued.