Kampmann v. Williams

Maltbie, Presiding Judge. The appellees, Williams & Russell, brought this suit in the district court of Bexar county on the twentieth of December, 1884, on the following written instrument: San Antonio, June 21, 1884. Mr. L. Lambert: Please pay to Gus A. Kampmann & Co. five hundred dollars, and charge the same to account of W. J. Prince. Accepted June 23, 1884. [Indorsed] Gus A. Kampmann & Co. The petition alleges that the plaintiffs are the owners and holders of the draft, and that it became due and payable on the fifth of December, 1884, by reason of the fact that demand for payment was made on that day. The other allegations were appropriate to the relief sought. Defendants excepted to this petition substantially for the reasons that thé instrument sued on had not been protested and notice given as required by law; and also because suit was not brought to the first term of the. [571] court after the right of action accrued, or to the second term., showing good cause for not bringing suit to the first term. Plaintiffs, in their supplemental petition, allege, by way of excuse for not using due diligence to collect the draft, that defendant Boelhauwe, of the firm of G-. A. Kampmann & Co., represented to plaintiffs that the draft was to be held by plaintiffs for collection, as a favor to Boelhauwe, and that he never at any time instructed plaintiffs to protest or institute suit on it. All civil jurisdiction was, by an act of the Legislature approved February 25, 1881, taken from the county court of Bexar county and given to the district court; and for that reason it had jurisdiction of the matter in controversy. Otherwise it would not, as the amount of the debt, exclusive of interest, does not exceed the sum of five hundred dollars. An allegation of the petition that the debt became due on the fifth day of December, demand of payment having been made on that day, would not have the effect to prevent the draft from becoming payable until that time; but the undertaking, being payable on demand, it became due on the twenty-third of June, the date of acceptance, or as soon thereafter as demand for payment could reasonably have been made. (1 Daniel on Negotiable Instruments, 542, section 605; Cook v. Cook, 19 Texas, 437.) This instrument was not negotiable, and there was no necessity for protest to fix the liability of indorsers. It is provided, however, by articles 267 and 268 of the Revised Statutes, that in order to hold the assignor of a non negotiable instrument as surety for its payment, the assignee shall use due diligence to collect the same; and parol testimony shall be inadmissible to prove that the assignor, drawer or indorser of such instrument has released the holder from his obligation to use due diligence to collect it. The diligence required under this statute is the same as that required in negotiable instruments under the law merchant. (Thompson v. Payne, 21 Texas, 625.) Suit not having been brought until the third term of the court after the cause of action accrued, and no excuse for the delay being alleged in the original petition, the exceptions to it should have been sustained; nor do the allegations of the supplemental petition, hereinbefore set out, cure the defect of the original. These allegations are inconsistent with the original petition. If the plaintiffs, as is alleged, only held the draft for collection and as an accommo(b'fcion for one of the defendants, the instrument, not being [572] their property, while they could maintain an action against the acceptor, they could not against the indorsers. Opinion adopted May 1, 1888. It is further averred in the supplemental petition, “that on or about the second day of August, 1884, the plaintiffs, at the special request of defendant Boelhauwe, in order to enable said Boelhauwe to close up the business of Gus A. Kampmann & Co., credited the amount of the said bill on the account of Gus A. Kampmann & Co., being assured by Boelhauwe that he would be liable for the amount should said Lambert fail or refuse to pay said bill.” Defendants answered this supplemental petitiqn by a general denial; and further, that they did not, in writing or otherwise, make such promise. The supplemental petition does not appear to have been intended to form the basis of a suit for the recovery of money paid out and expended at the request of Boelhauwe for his use and benefit, or for the use or benefit of the firm of Kampmann & Co., but as an excuse for appellee’s failure to use diligence in the collection of the draft. We are clearly of the opinion that under the facts stated no suit can ■be maintained on the draft, but think the judgment should be reversed and remanded, so that appellees may have an opportunity to amend their petition if they desire. Ho opinion is expressed, however, whether they can maintain an action against appellant or not. Reversed and Remanded,