Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63. Page: 37
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188S5. GONZALES V. CHARTIER. 37
Opinion of the court.
During the pendency of this suit all of the defendants herein
(except the appellee), it was alleged, had paid their proportionate
part of expenses and costs, and the suit as to them was discontinued
and remained against the appellee as sole defendant.
Appellee filed many defenses and exceptions, of which the following
were sustinned by the court below: 1st. Because the amended
petition was in violation of rule 13 of the Rules for the District
Court, in not sufficiently setting out the character of the amended
pleading; 2d, that the contract was within the statute of frauds;
and 3d, that the bill of particulars, upon which the action was
based, was not sufficiently definite. The appellants declining to
amend, the cause was dismissed.
Pat. O'Docharty, for appellants.
No briefs on file for appellee.
WILLIE, CHIEF JUSTICE.- Three grounds of special demurrer were
sustained below to the amended petition of appellants, and the cause
dismissed, no amendment to the petition having been offered.
As to the point made, that the amended petition was in violation
of rule 13 prescribed for the government of district courts, it
is sufficient to say that the amended petition does point out the instrument
it proposes to amend, viz.: the original petition filed June
26, 1882. This rule does not require that the new pleading shall
state in terms that it is a substitute for the one amended, but it is
made such substitute by force of the rule itself. It is clear from a
reading of the present amendment that it was intended to take the
place of the original pleading to which it refers, and that it does so
effectually by restating fully the cause of action relied on by the
plaintiffs below. This exception should not have been sustained.
The contract set forth in the petition did not show that it was one
not to be performed within a year. The expenses incurred by the
appellants for their co-plaintiffs ih the suit for the "La Huerta"'
lands were to be refunded when that suit was decided, and the land
recovered in it partitioned among the plaintiffs. It was not absolutely
necessary that these events should not take place within one year;
and in such cases it is well settled that the agreement is not required
by the statute of frauds to be in writing. Thouvenin v. Lea, 26 Tex.,
615, and authorities there cited; Thomas v. Hammond, 47 Tex., 43.
Moreover, although the contract be such as comes within this provision
of the statute of frauds, the pleading that declares upon it
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28511/m1/61/: accessed May 2, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .