Maple v. Smith

Court of Appeals of Texas

Maple v. Smith

166 S.W. 1196, 1914 Tex. App. LEXIS 444

CourtCourt of Appeals of Texas

DecidedApril 30, 1914

DocketNo. 312.

StatusPublished

Cited by1 cases

This text of 166 S.W. 1196 (Maple v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maple v. Smith, 166 S.W. 1196, 1914 Tex. App. LEXIS 444 (Tex. Ct. App. 1914).

Pincite

Opinion

HIGGINS, J.

The only assignment presented is that the court erred in withdrawing from the jury the issue raised by defendant’s plea of limitation; the contention being that the amended petition declared upon a different cause of action from that set up in the original petition, and was filed more than two years after the accrual of the cause of action.

[1] In the absence of a statement of facts, there are various reasons why this assignment of necessity must be overruled, but nevertheless we have. examined the two petitions, and áre unable to sustain the contention made.

[2] Both petitions are based upon an alleged agreement of Maple to divide with Smith a commission earned for effecting a sale of certain property owned by one German to L. *1197 E. Booker. They plainly relate to the same transaction. The amendment is a mere amplification of the original pleading, stating more accurately and fully the facts relating to the contract originally declared upon. It must be regarded as a continuation of the original suit, and not the institution of a new one. Townes on Pleading (2d Ed.) 457; Thouvenin v. Lee, 26 Tex. 615; Burton-Lingo Co. v. Beyer, 34 Tex. Civ. App. 276, 78 S. W. 249; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 364; Schauer v. Von Schauer, 138 S. W. 147; Goodwin v. Simpson, 136 S. W. 1191; Ry. Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 285; Bingham v. Talbot, 63 Tex. 273; Cotter v. Parks, 80 Tex. 542, 16 S. W. 307.

AfGrmed.

Free access — add to your briefcase to read the full text and ask questions with AI

HIGGINS, J.

The only assignment presented is that the court erred in withdrawing from the jury the issue raised by defendant’s plea of limitation; the contention being that the amended petition declared upon a different cause of action from that set up in the original petition, and was filed more than two years after the accrual of the cause of action.

[1] In the absence of a statement of facts, there are various reasons why this assignment of necessity must be overruled, but nevertheless we have. examined the two petitions, and áre unable to sustain the contention made.

[2] Both petitions are based upon an alleged agreement of Maple to divide with Smith a commission earned for effecting a sale of certain property owned by one German to L. *1197 E. Booker. They plainly relate to the same transaction. The amendment is a mere amplification of the original pleading, stating more accurately and fully the facts relating to the contract originally declared upon. It must be regarded as a continuation of the original suit, and not the institution of a new one. Townes on Pleading (2d Ed.) 457; Thouvenin v. Lee, 26 Tex. 615; Burton-Lingo Co. v. Beyer, 34 Tex. Civ. App. 276, 78 S. W. 249; Mayes v. Magill, 48 Tex. Civ. App. 548, 107 S. W. 364; Schauer v. Von Schauer, 138 S. W. 147; Goodwin v. Simpson, 136 S. W. 1191; Ry. Co. v. Mitten, 13 Tex. Civ. App. 653, 36 S. W. 285; Bingham v. Talbot, 63 Tex. 273; Cotter v. Parks, 80 Tex. 542, 16 S. W. 307.

AfGrmed.

Cite This Page — Counsel Stack

Bluebook (online)

166 S.W. 1196, 1914 Tex. App. LEXIS 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maple-v-smith-texapp-1914.

Opinion

Related

Cite This Page — Counsel Stack