Taylor Water Co. v. Kelley

32 S.W. 436, 11 Tex. Civ. App. 339, 1895 Tex. App. LEXIS 247

• Court: Court of Appeals of Texas
• Decided: October 30, 1895
• Docket: No. 1308.
• Status: Published

Opinion

KEY, Associate Justice.

Appellee sued appellant on an alleged due bill, charged in appellee’s petition to have been executed by and for appellant; and its execution was not denied under oath'. Ho formal due bill was produced, but appellee showed that he received a letter signed by one W. H. Riley, stating that he sent therewith a statement of appellee’s account with the Taylor Water Co. The account which accompanied the letter contained several items of debits and credits, and concluded thus: “E. & O. E. Balance due you, $171.53.”

In our opinion, the account and letter, construed together, constitute a due bill; and appellee having charged in his petition that they were executed by appellant, and by its authority, and appellant having failed to deny these averments under oath, they, without any further evidence, established appellee’s case, and entitled him to judgment for the amount recovered. Bradford v. Taylor, 61 Texas, 508; City Water Works v. White, 61 Texas, 536.

It follows from what has just been said, that, even if the court erred in admitting in evidence the letters purporting to have been written by G-. W. Burkett, such error will not avail to reverse the judgment. The plaintiff’s case was clearly made out without these letters; the' defendant offered nothing in rebuttal; and, if the letters had been excluded, judgment should have gone, as it did, for the plaintiff.

The plaintiff’s suit being founded upon a written due bill, the two years’ statute of limitations does not apply, and four years had not elapsed when the suit commenced.

We find no error in the record, and affirm the judgment.

Affirmed.