A. May & Co. v. Pollard

Citations

• 28 Tex. 677

Syllabus

<p>Being sued on a note and an open account, the defendant plead payment and offsets, and set out in his answers a receipt of the plaintiffs for a certain quantity of cotton, describing the receipt as bearing date “October 25, 1854.” On production of the receipt in evidence, its date appeared to be “Oct. ’54:” Held, that the variance in the date was not material, and that the admission of the receipt in evidence could not have operated a surprise on the plaintiffs. (Paschal’s Dig., Art. 3444, Note 795.)</p> <p>The receipt being a written instrument, and its execution by the plaintiffs being charged in the defendant’s answer, it was proper to admit it in evidence without proof of its execution, unless plaintiffs had denied its execution by a pleading under oath. (Paschal’s Dig., Art. 1443, Note 549.)</p> <p>Where the plaintiff was a merchant, but the defendant was not a merchant, and the items of his account were not strictly credits given to the plaintiff, but were payments made on his own account, the dealings are not accounts between merchant and merchant, within- the meaning of the 1st section of the statute of limitation. (Paschal’s Dig., Art. 4604, Note 1019, p, 760.)</p>