S. A. White v. H. S. Fulkerson, 24 Tex. 635

Bell, J. We think that the court below erred in refusing the second instruction asked by the defendant in the court below. That instruction was to the effect that if the jury believed from the evidence, that the paper attached to the deposition of H. S. Cunningham, was not executed or authorized by either of the partners of the firm of White & Southern, it could not be considered as evidence in the cause.

The paper alluded to in this instruction, is the paper, a copy of which was made a part of the petition, and which purports to be an account of sales, or rather a statement of an account between the firm of White & Southern and the plaintiff in the court below. This paper showed, that all the sales of the articles consigned to White & Southern, by Fulkerson, had been made more than two years before the institution of this suit; but the paper itself bore date within two years before the institution of the suit.

The question upon the plea of the statute of limitations, was the main question in the case for the determination of the jury. In this point of view, the admissibility of the writing which purported to state the account between the plaintiff and the defendants, became a question of importance. The judge instructed the jury, in substance, that the plaintiff’s demand would not be barred until a reasonable time had elapsed from the sale of the goods and the receipt of the proceeds, within which the defendants could furnish an account of sales, or the plaintiff could make demand, and two years thereafter.

Under this instruction, the jury would naturally look to the date of the statement of the account by the defendants themselves, as indicating a reasonable time after the sale, for the statement of the account. There was no evidence before the jury of any demand by the plaintiff at any time before the institution of the suit. Uor was there any evidence of any statement of account by the defendants, other than that furnished by this paper, dated June 20th, 1854.

It was admitted, that this paper was not in the hand-writing of either of the partners of the firm of White & Southern, nor was there any evidence to show how such a paper ever got into the possession of the plaintiff. Under these circumstances, we think it clear, that the paper ought not to have been admitted in evidence, and that it was error in the court to refuse the instruction asked by the defendant in reference to this paper. For this error, the judgment of the court below is reversed, and the cause remanded for another trial. Reversed and remanded.