
    Kinney and another v. Lee.
    An order to pay a certain amount “ out of proceeds of cattle to be sold for my account when “ tho same shall be received by you ” is not a bill of exchange; and the acceptor of such an order becomes liable to the holder to the same extent as he would have been liable to tho drawer if no such order had been given; no further.
    Where suit was brought on a conditional promise», but there was no averment of the happening of tho condition, but afterwards, and after four yours, an amendment was filed,which averred that the condition had happened before the commencement of tho suit; Held, that limitation was interrupted by the filing of tho petition. (Note 28.)
    Error from Galveston. Lee brought suit against Kinney & Aubrey, as acceptors, and Newell, as indorser, of' a certain draft or order of the following tenor:
    “Messrs. Aubrey & Kinney — Gentlemen—8941. Please pay to IVni. L. “1-Iurd, out of proceeds of cattle to be sold my account, the sum of nine hundred “and forty-one dollars, when the same shall be received by you, and charge “ tlie same to account of, respectfully,
    “Tour obedient servant, STEWART NEWELL.
    “ City of Aranzas, October 2d, 1840.” which was indorsed by tlie payee, without recourse.
    The draft was made part of tlie petition, and in an amendment the plaintiff alleged that though Aubrey & Kinney liad received large quantities of cattle, at tlie time of their acceptance and afterwards, from Nowell, and although a reasonable time for tlie sale of such cattle had elapsed, and although they'had sold such cattle to a much greater amount than that called for by tlie acceptance, they still refused to'pay; and plaintiff alleged that one year was a reasonable time within which to sell such cattle.
    The petition was filed February 3d, 1845. Service of citation was made on Aubrey and Newell in tlie same year, but not on Kinney until May 10th, 1849. Amendment to petition was filed November 29th, 1849.
    Newell answered by demurring generally, and the general denial. Kinney answered by a general and special demurrer and several pleas in bar : alleging* in tlie fourth plea that tlie firm of Aubrey & Kinney did not receive tlie amount of tlie draft out of tlie proceeds of cattle to be sold on account of Newell before tlie suit; and in tlie fifth and sixtli pleas, that tlie cause of action did not accrue, and that tlie defendant did not promise, &e., within four years next before tlie commencement of the suit.
    At tlie May term, 1851, the plaintiff recovered a verdict and judgment against tlie defcndants'Ncwell and Kinney, and judgment was also entered against Aubrey for $1,631, tlie principal and interest reckoned from the expiration of eighteo.n mouths from tlie elate of the draft. A motion for new trial was overruled.
    It was proved on tho trial that eighteen months was a reasonable, time within which to dispose of tlie cattle; 'bat there was no proof other than ilic draft that any cattle of Newell’s were in tlie possession of Kinney & Aubrey, nor that they had sold any on Newell’s account.
    
      Allen %• Hale, for plaintiffs in error.
    
      Jones Ballinger, for defendant in error.
   Lipscomb, J.

The bill sued on in this ease is not valid as a bill of exchange, because id is to be paid out of tlie proceeds of cattle, to be sold on account of the drawer, when they should lie received the drawees; and it is not certain whether there ever would be a sufficient amount received to pay the bill. (See Story on Bills of Exchange, sec. 48.) The bill having been accepted, as a general am-plance, did not impart validity to it as a hill; it only made the acceptors liable according to the terms oE the draft on its face; and, to make the acceptors liable on their acceptance, it must he. shown that the contingency on which the hill was drawn had happened — that the cattle had been sold on account of the drawer, and that a sufficient amount had been received to pay the. hill. Suppose that the drawer had no cattle that drawees could sell; 'or, if ihe cattle were sold by the drawees, but no money had ever been received without the fault of the drawees: they would not be liable on their acceptance, because it did not go beyond the terms of the bill. On the liability of acceptors on a bill invalid as a bill of exchange, see note 8 to tire section cited of Story on Bills of Exchange, p. 58; and for the acceptance, see Story on Bills of Exchange, sec. 238, 280. The original petition contained no averment that I hi: terms of the bill, which were the terms of the acceptance, had been made out and accomplished by the happening' of the contingencies — the sale of the cattle and the receptiou of the money. It did not, therefore, show any cause of action, and was subject to demurrer. The amended petition made the necessary averments, but the proof did not sustain one of them, and the verdict was without evidence, and ought to have been set aside, and a new trial granted.

The acceptance in this case imposes no greater liability than if it had been on a draft, or order drawn on an attorney at law, to pay to the payee the amount of a note, when collected, placed in his hands for collection, or owned by tho drawer. If tho money could never he collected it would impose no liability on the acceptor, and it would he tho same if drawn upon any other agent for collecting money.

TVe believe, that the bill, or order, was assignable under our statute.

The filing of the petition in our practice is the commencement of the suit, and would interrupt the running of the statute of limitations.

The court, erred in overruling''the motion for a new trial. The judgment is reversed and cause remanded for a new trial.

Beversed and remanded.

Note 28. — Williams v. Randon, ante 74.  