Lewis v. Parker

Morrill, C. J. When Waul drew the bill on Parker, he either had funds in Parker’s hands or he had not; he was legally authorized to draw or he was not. If he was not authorized to draw, he had notice of the protest when he drew; and the law does not impose upon the payee the duty of informing him that the debt was not paid, when he knew beforehand that it would not be. If Parker is not liable on the draft, because he was an aecom- ' > modation acceptor, and this fact was known to the payee, then surely Waul was liable for .the same reason. It was error in the court to decide that there was no cause of action against the drawer of the draft, because his liability was not fixed by writ or protest, if the acceptor is not liable. The petition is certainly defective in not stating directly and pointedly, what is stated covertly, that Parker had no funds in his hands, or erred in not alleging why Waul was liable. The judge also erred in taking the power upon himself to render a judgment in favor of Waul, after the testimony had been partly given to the jury. He could have decided upon the pleadings before the trial upon the facts, and thus given the plaintiff an opportunity to amend; but he had no right or power to decide a question of fact, unless by the consent of both parties. The' opinion of this court in the case of Durrum v. Hendricks, (4 Tex. R., 495,) is decisive of all the legal, points arising in this case. For the reasons- set forth in that case the judgment in the district court, as to both parties defendant therein, is reversed, and the cause remanded for further proceedings. Reversed and remanded. .