
    SLAUGHTER v. HALL.
    (Court of Civil Appeals of Texas.
    Dec. 31, 1910.)
    1. Novation (§ 3) — Requisites—Discharge oír Previous Agreement.
    To constitute novation of an- original contract, an agreement made thereunder must have fully discharged the same.
    [Ed. Note. — For other cases, see Novation, Cent. Dig. § 3; Dec. Dig. § 3.]
    2. Novation (§ 3*) — Transactions Constituting.
    There was no novation of a contract to pay a fixed commission for procuring insurance business, by an agreement to reduce the rate, made in compromise of a suit for specific commissions on condition of payment of the commission on collection of the premium on which the commission was earned.
    [Ed. Note. — -For other cases, see Novation, Cent. Dig. § 3; Dec. Dig. § 3.]
    3. Pleading (§ 245) — Amendment—Time.
    Under Sayles’ Ann. Civ. St. 1897, art. 1888, authorizing amendment of pleadings before the parties announce ready for trial, and not thereafter, a general demurrer having been overruled, it was not error in an action for a commission to refuse to permit defendant to file a trial amendment containing a special demurrer on the theory that plaintiff’s pleadings restricted recovery to a certain amount.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 653-675; Dec. Dig. § 245.]
    4.Pleading (§ 236) — Amendment—Time.
    Sayles’ Ann. Civ. St. 1897, art. 1188, authorizing amendment of pleadings before the parties announce ready for trial and not thereafter, prescribes a general rule, but a trial court may allow such amendment after that time as promotes justice, and it was not an abuse of discretion to permit plaintiff to file a supplemental petition during a trial pleading payment of items in defendant’s counterclaim.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 601; Dec. Dig. § 236.]
    Appeal from Dallas County Court; W. M. Holland, Judge.
    Action by Kirk Hall against E. Dick Slaughter. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Harry P. Lawther, for appellant. Chas. A. Rasberry, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BOOKHOUT, J.

On November 13, 1906, appellant and appellee were both engaged in the insurance business in the city of Dallas. Appellant was a member of the firm of Na-bors & Slaughter; appellee, of the firm of Baird & Hall. This suit was instituted by appellee, Hall, as successor of the firm of Baird & Hall, against appellant, Slaughter, successor of Nabors & Slaughter, for commissions claimed to be due him. It was alleged that on the date above named the firm of Baird & Hall entered into an agreement with the firm of Nabors & Slaughter whereby, for any liability, insurance placed by Baird & Hall with Nabors & Slaughter, the latter were to pay to the former 20 per cent, of the gross premiums for which said insurance was written as long as any policy so written was in force.

The petition charged that certain premiums had been paid on a liability policy issued by the iEtna Life Insurance Company, represented by appellant, to parties who had been brought to appellant by appellee, and a recovery of 20 per cent, of said amount was prayed for. It was further, alleged “that on or about January 23, 1906, because of the refusal of the defendant to pay plaintiff the portion of the premium due under the policy at said time, it became necessary to file suit therefor, and said suit was in fact filed in the county court of Dallas county, at law, seeking a recovery of the amount due at that date, but after the filing of said suit and before a trial of the issues involved therein a compromise was effected between plaintiff and defendant by which plaintiff agreed in consideration that defendant would, from and after said date and said compromise, promptly pay the plaintiff his portion- of the premium as it accrued upon said policy, to reduce the amount of said premium due plaintiff from 20 per cent, of the gross thereof to 16½ per cent, and which the defendant expressly agreed to do. Plaintiff avers that at the time of said settlement and compromise all premiums due to February 26, 1908, were paid, and that since said settlement there has been paid to the defendant the sum of $2,424.77 by Fred A. Jones & Co., as premiums upon the policy secured by plaintiff and of which amount the plaintiff is entitled to $484.95 being 20 per cent, thereof, but that to pay the same or any part thereof the defendant has wholly failed and refused, and still fails and refuses, to plaintiff’s damage as aforesaid.” Appellant answered with a general demurrer, general denial, a counterclaim of $275.38, and specially that the premium of $2,052.26 claimed to have been paid was paid on a policy issued to a party not brought to appellant by appellee, and with whom appellee had naught to do, and that same was a business obtained directly by appellant from the insured. A general demurrer to the petition was overruled, and this ruling is assigned as error. The contention is made that the compromise agreement of the former suit set out in the petition was in substitution of the original contract, and operated as a novation of the same. We do not agree to this contention. In order to constitute a novation of the original contract, the compromise agreement must have fully discharged the same. 1 Pars. onConts. (9th Ed.) bottom pp. 239-241; Caswell v. Fellows, 110 Mass. 52; Scott v. Atchison, 36 Tex. 78; Scott v. Atchison, 38 Tex. 389. This it did not do. The original contract remained in full force; but the percentage which the plaintiff, Hall, was to get was reduced from 20 per cent, to 16½ per cent, of the total commission, provided Slaughter paid the same to Hall as collected by him. Neither the pleadings nor evidence showed a novation of the original contract. The petition alleged a good cause of action as tested by a general demurrer. After the overruling of his general demurrer, the defendant asked leave to file a trial amendment containing a special demurrer, in substance, that it appeared from plaintiff’s pleadings that the cause of action against defendant was for 16½ per cent, of $2,424.77, instead of 20 per cent, of that amount. This request was denied by the court, and such refusal is assigned as error. There was no error in this ruling. The statute provides that the pleadings may be amended before the parties announce ready for trial, “and not thereafter.” Sayles’ Ann. Oiv. St. 1897, art. 1188. Under this statute the defendant was not as a matter of right entitled to amend his pleadings.

It is contended in the third assignment that the court erred in permitting the plaintiff, during the trial of the cause, and while the evidence was being introduced, and after having sustained the defendant’s objection to proof offered by the plaintiff tending to show payment of the several items set out in the defendant’s counterclaim, to file a supplemental petition pleading payment of the said items. This contention is not sustained. As stated, the statute provides that pleadings may be amended before the parties announce ready for trial, “and not thereafter.” It is held that this is a general rule, but that it is in thejpower of the court to allow such amendment after that time as might become necessary to attain the ends of justice. Parker v. Spencer, 61 Tex. 164; Whitehead v. Foley, 28 Tex. 10. We think it was within the sound discretion of the trial judge to permit the filing of the amendment. The defendant did not claim surprise or ask that the trial be postponed or the cause continued.

It is not made to appear that there was any abuse of the discretion of the court in permitting the filing of the amendment.

The judgment is affirmed.  