Black v. Calloway

Coke, J. This suit was brought on a protested draft for $350, drawn at Jefferson, on the 31st January, 1860, by EL H. Black, payable to the order of A. G-. Scogin, on Messrs. Fellows & Co., of New Orleans, and indorsed by Scogin to McKelroy & Bradford. The protest of the draft for nonacceptance is averred in the petition. It is also averred, this suit being brought to the second term of the court after the dishonor of the draft, that it was not instituted before the first term, because the plaintiffs did not hear of the protest until too late to sue to the first term. The plaintiffs, Calloway & Bain, are alleged to be merchants. McKelroy & Bradford, to whom the draft was indorsed, simply for convenience of collecting the draft, as is alleged, they being the agents of plaintiffs in New Orleans, are also alleged to be merchants. There is no allegation that Black, the drawer, is a merchant, nor that Scogin, the payee and indorser, is a merchant; nor is it alleged that Fellows & Co., the drawees, are merchants, or [236] that they were the agents or factors of Black, the drawer. There were a verdict and judgment for the plaintiffs below for $350 principal, $31 10 interest, $35 damages, and $3 06 notary fees, making in all the sum of $419 16. This writ of error is sued out by Scogin, the indorser. The charge of the court is assigned as error, and we are of opinion that the assignment is well taken, at least to so much of it as authorized the finding of ten per cent, damages. The act of 24th December, 1851, on this subject, (Paschal’s Dig., Art. 236) provides that the holder of any protested bill of exchange or draft, drawn within the limits of this state, uponany person living beyond the limits of this state, shall, after having fixed the liability of the drawer or indorser of such draft or bill in the manner provided by law, be entitled to recover ten per cent, on the amount of such draft or bill as damages, together with interest and costs of suit, provided that this act shall not be so construed as to embrace drafts drawn by persons other than merchants upon their agents or factors. It is by virtue of the provisions of this act, if at all, that the plaintiffs below were entitled to recover ten per cent, damages. A party who would claim the benefit of this act, which is somewhat penal in its operation, should at least be held to bring his case fairly within its provisions by appropriate averments. The well established rules of pleading require that the facts on which a party bases his claim to the relief he seeks shall be averred with reasonable certainty and distinctness, as well to apprize the opposite party of the nature of the action he has to meet, as to lay a predicate for his proof. If these salutary requirements could in any instance be departed from with propriety, the departure should certainly not be made in favor of one who is seeking himself the enforcement of a rigorous rule of law upon his adversary. The plaintiffs have failed to allege in their pleadings the facts which would entitle them to recover ten per cent, damages against the defendants. It is true that they pray [237] judgment for damages, but they do not bring their case within the proviso of the statute, by alleging that Black, the drawer, is a merchant, and that Fellows & Co., the drawees, are his factors or agents, the allegation and proof of which would alone entitle them to such a recovery. There being no basis in the pleadings for a verdict and judgment against the defendants below for damages, it follows that the charge of the court, which authorized such a finding by the jury, is erroneous, and for this error the judgment must be reversed. The omission is fundamental, and is, under repeated adjudications of this court, clearly not cured by the verdict. (Locke v. Huling, 24 Tex., 312; Elliott v. Wiggins, 16 Tex., 596; McLellan v. The State, 22 Tex.; DeWitt v. Miller, 9 Tex., 239.) The correctness of all that portion of the charge of the court predicated upon the hypothesis that the draft sued on is mercantile papers is exceedingly questionable, even if it were admitted to be law in the abstract, (about which we express no opinion,) for the reason that the draft sued on is not alleged to be mercantile paper: neither the drawer, Black, the payee, Scogin, nor the drawees, Fellows & Co., having been alleged in the pleadings to be merchants; nor can we .say that the draft has the appearance of mercantile paper, if its appearance could, as has been intimated in this court, be substituted and held good for the direct averment, in the absence of special exceptions. (Pyron & Mitchell v. Butler, Austin T., 1864,) [27 Tex., 271.] The draft is drawn by H. H. Black on Fellows & Co., in favor of Scogin. We might say, from the appearance of the draft, that the drawees, Fellows & Co., are merchants, but there is nothing to indicate that Black and Scogin, between whom the contract originated, are merchants. Fellows & Co., the drawees, never became parties to the contract embodied in this draft, because they refused to accept. The 6th section of the act of March 29, 1848, which was in force when this draft was given, restricts the fixing of the [238] liability of drawers and indorsers of bills of exchange and promissory notes by protest for non-acceptance or nonpayment, and giving notice of such protest, “to contracts between merchant and merchant, their factors and agents.” Eo drawee ever becomes a party to such a contract until he accepts; until then, the contract exists between the drawer and payee exclusively, and it may well admit of serious doubt if the two latter are not the parties to the bill required by the statute to.be merchant and merchant, in order to give a mercantile' character to the paper. We do not intend to be understood as deciding this point, its decision not being necessary to a disposal of the case. The judgment is reversed, and cause remanded for further proceedings. "Reversed and remanded. [Willie, J, having been of counsel, did not sit in this case.]