
    McCAMANT v. McCAMANT.
    (No. 8856.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    April 20, 1918.)
    1. Limitation of Actions <&wkey;127(4) — Liability or Indorsee — Amendment or Pleading.
    A petition setting up payee’s execution of notes and liability of indorser, but not excusing failure to sue maker before second court term after maturity, required by Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 579, stops the running of the statute of limitations, and an amended petition supplying the allegations does not constitute a new cause of action.
    2. Bills and Notes <&wkey;>408 — Liability or Indorsee — Remedy or Holder — Statutes.
    The remedy of the holder of a promissory note under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, to secure and fix the liability of an indorser by suit against maker before the first term of court to which it can be brought after accrual of cause or before the second term by excusing delay is a cumulative remedy, and is not exclusive of the right to fix liability of in-dorser by pi’otest and notice under the law merchant.
    3. Bills and Notes t&wkey;299 — Liability oe Indorsee — Insolvency oe Maker as Excusing Delayed Suit.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 579, requiring suit against maker at first or second term after accrual of cause of action to fix liability of indorser, the insolvency of the maker excuses compliance with the statute.
    4. Bills and Notes <&wkey;299 — Liability oe Indorsee — Excusing Delayed Suit — Waiver oe Indorsee.
    Under such statute indorser may waive holder’s duty to sue.
    Appeal from Tarrant County Court; Geo. E. Hosey, Judge.
    Suit by R. L. McCamant against Minnie May McCamant. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    See, also, 187 S. W. 1096.
    Geo. N. Beakley, of El Paso, and Mercer, Wall & Rouer, of Ft. Worth, for appellant. McCart, Curtis & McCart, of Ft. Worth, for appellee.
   CONNER, O. J.

As originally instituted, this suit was to enforce tbe collection of a certain note for $700 executed by J. W. and J. H. Woodward, dated January 14, 1910, due August 1, 1910, bearing interest at tbe rate of 8 per cent, from date, and providing 10 per cent, attorney’s fees.. Tbe note was payable to Minnie May McCamant, community administratrix, and after maturity was so indorsed by ber and delivered to appellee for a valuable consideration. As instituted, tbe suit was against tbe makers of tbe note and against Minnie May McCamant as in-dorser. At a succeeding term of tbe court judgment was rendered in favor of tbe plaintiff against tbe Woodwards and against Minnie May McCamant, but thereafter on appeal to this court tbe judgment was set aside, and tbe cause remanded, on tbe ground that tbe plaintiff had not alleged in his petition either compliance with or an excuse for noncompliance with article 579, Vernon’s Sayles’ Tex. Civ. Stats., which, so far as applicable here, reads:

“The holder of any * * * promissory note, assignable or negotiable by law, may secure and fix the liability of any drawer or indorser of such bill of exchange, and every indorser _ of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange, or against the maker of such promissory note, before the first term of the district or county court to which suit can be brought, after the right of action shall accrue; or by instituting suit before the second term of said court, after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.”

In an opinion by Mr. Justice Buck this court beld that no cause of action as against Minnie May McCamant was presented in tbe plaintiff’s petition, and bence that tbe petition was bad on general demurrer, inasmuch as it appeared therefrom that suit bad not been instituted either at tbe first or second term of tbe court after tbe right of action against Minnie May McCamant accrued as required by the statute. See McCamant v. McCamant, 187 S. W. 1096.

After tbe cause was remanded in accordance with that opinion tbe plaintiff, R. L. McCamant, filed an amended petition in which be alleged substantially as before, and further, by way of excuse for not having sooner filed suit:

That J. W. and J. H. Woodward and their estates were continuously, from August 1, 1910, when the note declared upon matured, until the time the suit was filed on October 80, 1911, actually and notoriously insolvent, and also that Minnie May McCamant “requested plaintiff at about the time he acquired said note from her in writing, acting by her attorney, M. W. Stanton, or Stanton & Weeks, not to file suit to enforce the collection thereof until instructed so to do by her or her attorneys, agreeing in consideration of plaintiff not filing said suit that she, said defendant, would satisfy said note in full, as soon as she could sell certain real estate that she was then endeavoring to sell; that, if suit was filed, it would interfere with the selling of said real estate, and therefore she did not desire it to be filed; that, relying on said agreement, plaintiff deferred filing this suit until about the time said suit was filed,” etc.

To this amended petition tbe appellant, among other- things, pleaded tbe statute of limitation of four years, and tbe case proceeded to trial before a jury. Tbe case was submitted upon special issues only, which, so far as thought to be material, were as follows:

“Did or did not S. A. Penix, attorney for the plaintiff herein, receive a letter from M. W. Stanton, as attorney for defendant, requesting a delay in filing suit on said note?
“Were or were not the signers of the note, J. H. and J. W. Woodward, actually and notoriously insolvent on September 21, 1910, and continuously thereafter until the filing of the suit herein?”

Both of tbe foregoing issues were answered by tbe jury in tbe affirmative, and the jury further answered that tbe letter referred to in the first issue' was dated about tbe 1st of October, 1910. Upon tbe verdict so rendered tbe court entered up a judgment in favor of tbe plaintiff, and tbe defendant appeals.

The vital question presented by tbe assignments of error is whether tbe cause of action against appellant was barred under our statute of limitation of four years. It is undisputed that more than four years elapsed from tbe time when tbe plaintiff might have instituted his suit — when bis cause of action accrued — until tbe plaintiff filed bis amended petition, which was on April 2, 1917. And bence appellant was clearly entitled to a peremptory instruction in her' favor, as she requested, unless it must be said that tbe plaintiff’s amended petition was not, as applied to tbe circumstances of this ease, and strictly speaking, tbe beginning of the suit against ber. In other words, was tbe amended petition an amplification or enlargement of tbe original petition, or must tbe amended petition be accepted as tbe beginning or initial action against ber?

Tbe questions presented have not been entirely free from difficulty, but we have finally concluded that they must all be resolved in favor of appellee and of the judgment below. It has been many times beld that a petition bad on general demurrer will stop the statute of limitation. Evans v. Mills, 16 Tex. 196; Ward v. Lathrop, 11 Tex. 287; Killebrew v. Stockdale, 51 Tex. 529; Burnett v. Casteel, 36 S. W. 782; Kauffman v. Wooters, 79 Tex. 205, 13 S. W. 549; T. & P. R. R. Co. v. Johnson, 34 S. W. 188; Tarkinton v. Broussard, 51 Tex. 555; Day v. Trading Co., 183 S. W. 85; Williams v. Warnell, 28 Tex. 612; T. & P. R. R. Co. v. Hamm, 2 Willson, Civ. Cas. Ct. App. § 491; Lyle v. Harris, 1 White & W. Civ. Cas. Ct. App. § 71; Warner v. Bailey, 7 Tex. 521.

Tbe first two cases above cited bold that, where tbe original petition failed to show that tbe court bad jurisdiction of tbe defendant, it could be amended so as to show jurisdiction without stating a new cause of action. In Killebrew v. Stockdale, supra, it was beld that a petition on a promissory note bad on general demurrer for want of averment of ownership of a note, constituted a sufficient commencement of a suit to stop tbe running of the statute of limitation, and that the amendment to cure this defect was not the starting of a new cause of action or the commencement of a new suit. The other cases cited will further illustrate the proposition above stated.

The contract of an indorser of a negotiable promissory note is thus stated in section 363, title Bills and Notes, of 3 R. O. L., viz.:

“The full contract which the general commercial law implies from the indorsement of a negotiable promissory note on the part of the in-dorser, with and in favor of the indorsee, and every subsequent holder to whom the note is transferred, is: (1) That the instrument itself, and the antecedent signatures thereon, are genuine ; (2) that he (the indorser) has a good title to the instrument; (3) that he is competent to bind himself by the indorsement as indorser; (4) that the maker is competent to bind himself to the payment, and will, upon due presentment of the note, pay it at maturity, or when it is due; (5) that if. when duly presented, it is not paid by the maker, he (the indorser) will, upon due and reasonable notice given him of the dishonor, pay the same to the indorsee or other holder.”

The quotation made from Ruling Case Law seems to state the obligation of an indorser as established by the authorities generally, and hence, when appellee filed his original petition, as he did, setting up the execution of the notes by the Woodwards, and its in-dorsement by appellant, followed by the allegations that the parties named thereby became liable and indebted to him,' a cause of action as against appellant in part at least seems to have been stated. The petition only lacked allegations setting up an excuse for not having earlier filed the suit. By again referring to article 579, earlier quoted in this opinion, it will be observed that there is no express declaration that an indorser shall be entirely released or discharged by a failure to institute suit at the first term after the right of action accrues or by instituting the suit before the second term showing good cause why the suit was not instituted before the first term. The article evidently was intended merely to provide a cumulative remedy for the holder to fix the liability of an indorser without protest or notice as required by the law merchant. By the law merchant, when a negotiable bill or note was dishonored by nonpayment at its maturity, it was the duty of the immediate holder, to give notice of such dishonor to the indorser; for it was regarded as entering as a condition in the contract of the indorser that he should only be bound in the event on nonpayment, and that upon nonpayment, unless notified thereof, he should be discharged in the absence of some excuse exonerating the holder. Excuses, however, were available. See section 399, title Bills and Notes, 3 R. 0. L., and other authorities that might be cited. Such has been the ruling of our courts for failure to comply with article 579 by instituting suit at the first or second term after the cause of action 'accrues. See Norton v. Wochler, 31 Tex. Civ. App. 522, 72 S. W. 1025; Costin v. Burton Lingo, 57 Tex. Civ. App. 634, 123 S. W. 177; Bank v. Robinson, 124 S. W. 177. In several of the cases cited and in the case of Insall v. Robson, 16 Tex. 128, Hanrick v. Alexander, 51 Tex. 494, and Burrow v. Zapp, 69 Tex. 474, 6 S. W. 783, it is expressly held that the insolvency of the maker of a note since its execution would excuse the failure of a plaintiff to institute a suit as required under the statute, and it was further held in the cases of Williams Brothers v. Rosenbaum, 79 S. W. 594, and Ketterson v. Inscho, 55 Tex. Civ. App. 150, 118 S. W. 628, that an indorser might waive the duty of the holder to institute suit as-required by the statute. See, also, Bank v. De Morse, 26 S. W. 417; Smith v. Lumber Co., 92 Tex. 448, 49 S. W. 574.

The verdict of the jury in this case has not been attacked on the ground of insufficiency of the evidence to sustain it. We therefore have a case, as we think, of a plaintiff originally suing an indorser upon a liability undoubtedly existing under the law at the time of the filing of his suit and under no legal necessity in fact to comply with article 579. In other words, under the findings of the jury the liability of appellant as an in-dorser of the note declared upon was in fact absolute, and the failure of the plaintiff originally consisted of a mere defect in the pleading, and not because of an absence of the facts, which gave him a perfect right to recover. The original petition, in part at least, as it seems to us, presented the liability of appellant, and while that petition was defective and bad on general demurrer, as held on the former appeal, it was not so entirely devoid of necessary allegations as to preclude the later amendment, which presented the excuses that at all times existed for not having filed suit at the first term, or at the second term with excuses shown for not filing at the first term. In speaking of amendments to a complaint in an action on a note it is said in 8 Corpus Juris, p. 954, § 1244,. that:

“Subject to the rules relating to the amendments of pleadings in all actions, amendments, will generally be permitted in the furtherance of justice provided a new and distinct cause of' action is not introduced.”

The following application of the rule is. here made:

“Thus a mistake in the date or time of payment, in the date of notice of dishonor, or in the amount of the note may be cured by amendment. So the failure to allege presentment for payment or the giving of notice of dishonor may be cured by amendment.”

Under the rule of the law merchant a failure to allege presentment for payment or the giving of notice of dishonor would certainly subject a petition upon a promissory note to-demurrer, and if, as stated by this authority, such failure may be cured by amendment, we see no reason why an excuse for failure to comply with article 579, requiring suit at the first or second term, may not also be supplied by amendment. Tbe ease of Bigbam v. Talbot & Cropper, 63 Tex. 271, was one in wbicb tbe plaintiff first declared upon one cause of action and later abandoned it by filing an amendment setting up another distinct cause of action, and yet later again filed an amendment setting up bis original cause of action. Tbe court in bolding that tbe statute of limitation ran against tbe original cause of action up to tbe time of tbe last amendment filed bad this to say: - -

“If, however, there had been any allegations in the first amended petition in any way retaining, even as part of the cause of action therein asserted, that which was asserted by the original petition, and afterwards reasserted by the second amended petition, that would have been sufficient to prevent the running of the statute after the original petition was filed.”

In the case before us, as already pointed out, more than one of tbe facts essential to appellant’s liability were alleged. Tbe only failure was tbe failure to allege tbe facts necessary under tbe statute to fix that liability. In this respect tbe case before us is different from one where tbe plaintiff fails to allege facts necessary under our statute to fix a laborer’s lien or where a plaintiff first declares upon a note that is barred by limitation, and thereafter by amendment sets up a new promise to pay as in Howard & Hume v. Windom, 86 Tex. 560, 26 S. W. 483. For it is a statute in one case, and a new promise in tbe other, that constitutes tbe cause of action. Not so here, as we have seen appellee’s cause of action, regardless of article 579, in fact existed at tbe time of tbe filing of appellee’s original petition and was in part declared upon. We accordingly bold that appellee’s amended petition did not set up a new cause of action, and that such amendment related back to tbe filing of the original suit, which it is undisputed bad been filed within four years from the maturity of tbe note declared upon.

What we have said, we think, sufficiently disposes of tbe material questions presented. It is accordingly ordered that all assignments of error be overruled, and tbe judgment affirmed.

Affirmed. 
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