McIlhenny v. M. C. Lee & Co.

Reeves, Associate Justice. This suit was brought by appellants in their firm name of Mcllhenny and Hutchins on a promissory note executed to them by M. C. Lee & Co., composed of M. C. Lee and appellee A. J. Roberson. The plaintiffs in their original petition averred that M. C. Lee, as the managing partner in liquidation for himself and Roberson, and with Roberson’s consent, executed to the plaintiffs the note described in their petition, signing the firm-name of M. C. Lee & Co., in liquidation. The petition further averred that Roberson had recognized and ratified the acts of Lee in the execution and delivery of the note as a debt due by the firm of M. 0. Lee & Co. The petition was filed on the 19th of May, 1873. On the 5th of September, 1873, Roberson answered by a general demurrer and general denial, and prayed for judgment over and against Lee for any amount which might be recovered by plaintiffs, and also denied under oath Lee’s authority to execute the note. The plaintiffs amended their petition on the 20th of September, 1873, and again on the 7th of April, 1874. The first amendment alleged a ratification of the note by Roberson, and that the note was given for goods sold by plaintiffs to M. C. Lee & Co. The second amendment alleged that plaintiffs, at the time of the sale of the goods to Lee & Co., were doing business under the name of Mcllhenny, Hutchins & Co., composed of the original plaintiffs and E. R. Terrell, who was made a party plaintiff. To the first amendment was attached a bill of particulars, dated December 27th, 1871. [209] To the last amendment, made April 7, 1874, defendant Roberson excepted on the ground, among others, that the parties plaintiffs were changed by the amendment, and that a new cause of action was introduced which was barred by limitation. The court sustained the exceptions and struck out the amendment. The material question in the case is presented by the assignment, complaining of the action of the court in striking out the amendment. That a plaintiff may amend by averring a new cause of action, subject to all defenses existing at the time it is made, including the defense of limitation, is well settled. But does the plaintiffs’ last amendment set up a new cause of action? We are of opinion that it does not. The first amended petition was filed on the 20th of September, 1873, less than two years from the making or maturity of the account. In both amendments it is averred that the note was given in consideration of goods and merchandise sold and delivered by plaintiffs to defendants. The cause of action, as averred in the first amended petition, not being barred by the statute when it was filed, the subsequent amendment, made on the 7th of April, 1874, was not affected by limitation, both amendments forming but one pleading. (Turner v. Brown, 7 Tex., 489.) The amended petition enlarged the prayer for relief, but this was not a statement of a new cause of action. (Chapman v. Sneed, 17 Tex., 428.) A mere change of parties, such as an amendment which strikes out one of the plaintiffs or which corrects the Christian name, it has been held, is not such an amendment as would give the defendant the benefit of the statute of limitations. (Pridgen v. McLean, 12 Tex., 420.) In Thouvenin v. Lea, 26 Tex., 614, it was held that “ the statute only operates as a bar when it is sought under the name of an amendment to present a new suit.” [210] The introduction of a new party as plaintiff was not, we think, such a change in the pleadings as subjected the amendment to the defense of limitation. ■ Where the plaintiff changes the character in which he sues or changes the capacity in which the defendant is sued, the amendment is subject to the bar of the statute, as where the plaintiff sued in her own right, claiming the entire property, and afterwards by an amendment claimed a distributive share as surviving wife, or where the plaintiff sues as administrator and amends, claiming the note in his own right, or where the petition charging the defendant as the representative of another was amended by charging him as partner. In cases like these the statute was only arrested by the amendment. (Hopkins v. Wright, 17 Tex., 30; Whitehead v. Herron, 15 Tex., 127; Henderson v. Kissam, 8 Tex., 46—cited in the brief of counsel for the appellee.) Such we have seen was not the character of the amendment in the ease at bar, and there was error in striking it out, for which the judgment will be reversed and the cause remanded. Appellant does not complain of the judgment against Lee, and only appeals from the judgment in favor of Roberson. Following the rule laid down in Burleson v. Henderson, 4 Tex., 49, the judgment is reversed as to both parties. Reversed and remanded. Reversed and remanded.