Grimes v. Hagood

Hemphill, Ch. J. The petition was filed on Oct. 25th, [248] 1855, and the plaintiff alleges that, on the 18th January, in that year, he had advanced the sum of seven hundred and fifty dollars to the defendants, which they promised to repay within a short time thereafter, to-wit: on the-day of-A. D. 1855. The defendants contend that their general demurrer to the petition should have been sustained, on the ground that the action was prematurely brought; that, by the averment, they had until the last day of eighteen hundred and fifty-five to make payment. The allegation, in relation to the time for payment, has very little certainty; but it would not be a fair construction, to hold that a promise to pay within a short time after the 18th January, 1855, viz : on the-- day of-in that year, could not be enforced until after the expiration of the year. The reasonable meaning of the language is, that payment is to be within the year : and if suit is brought prematurely, that is matter to be shewn and established by the defence. There was no error in overruling the general demurrer. At the trial, the plaintiff offered to read in evidence, a receipt, signed by defendants, a copy of which is in substance, as follows : “ Rec’d, Magnolia, January 18th, 1855, of W. A. Hagood,"seven hundred and fifty dollars, an advance on cotton now in store and to arrivesigned by the defendants. The defendants objected on the grounds : 1st. That it did not appear by said receipt, whether the money advanced was a loan to defendants, or the purchase money of the cotton. 2. Because there was no averment in the petition, as to what had been done with the Cotton. 8. That it did not appear by the receipt, that the money was due at the institution of the suit. As to the first objection, that it did not appear from the receipt, whether the money advanced was by way of loan, or as the purchase money of the cotton, it will suffice to say, that the obvious signification of the language is, that the cotton in store was the property of defendants, and, consequently, the advance upon it must have been by way of loan. But further, their an [249] swers had averred and reiterated, in substance, that the cotton was their property, and stored in the warehouse of the plaintiff. The fact that there had been no transfer of the property, precludes the idea that the sum advanced was a portion of the purchase money. The second objection, that there was no averment in the petition, as to what had been done with the cotton, is not without plausibility or force. There is .no doubt that the cotton was the primary fund for the discharge of the sum advanced. The jury were charged, and we think correctly, to this effect by the Court. If so, the petition, instead of being a general declaration for money loaned or delivered, should have stated the receipt of the cotton, the advance on the same, the storage by plaintiff, and that the cotton, before repayment of the advance, was destroyed by fire, without fault or negligence on the part of the plaintiff. These are the facts on which the plaintiff now seeks recovery from the defendants. They are material, issuable facts, and must be established in order to entitle the plaintiff to judgment. When proved, they at once fix the liability of the defendants. It is not material that the implied premises or undertakings of a defendant should be averred. These are conclusions of law. But it is essential that the facts on which his liability to recovery in the action depends, should be alleged. There is a ground, however, on which the objection for want of averment as to the disposition of the cotton, was properly overruled, viz: that the omission of the petition to state what had become of the primary fund—the cotton—was cured by the averments of the answer, to the effect that the cotton, after being stored with plaintiff, had been destroyed by fire. If one party expressly aver a material fact, omitted on the other side, the omission is cured. (Gould on Pleading, chap. 3, Sec. 192 ; Hill v. George, 5 Tex. R. 79 ; Nesbitt v. Richardson, 14 Id. 658.) By the pleadings, taken together, the controversy was re [250] duced to a single issue, viz : whether the loss of the cotton was to be attributed to accident, without fault on the part ‘of the plaintiff, or whether it was lost by his want of care and negligence. There was no error in admitting the receipt in evidence as against the second ground of objection; noi* as against the third ground, which, it is conceived, does not require any special examination. The question before the jury was one of fact. Their verdict was supported by evidence, and the judgment is affirmed. Judgment affirmed.