Lee v. Hamilton
Texas Supreme Court
Appeal from Smith. Action by the appellees, Hamilton and Wiley, as partners in carpentry, against the appellant, on an account for work and labor. The defendant filed an answer in which he denied the partnership of the plaintiffs, and pleaded certain payments in specific articles of property. The answer was filed on the 28th of October.
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Appeal from Smith. Action by the appellees, Hamilton and Wiley, as partners in carpentry, against the appellant, on an account for work and labor. The defendant filed an answer in which he denied the partnership of the plaintiffs, and pleaded certain payments in specific articles of property. The answer was filed on the 28th of October. On the 3rd of November, the plaintiffs filed exceptions to the first plea, on the ground that it was not verified by affidavit, and to the second plea on the ground that it was a plea of set-off of an individual debt of Hamilton to the defendant. There was a…
1Opinion of the CourtWheeler, J.
We are of opinion that the Court did not err in treating the plea, denying that the plaintiffs were partners as a nullity; because not sworn to when filed, and because the affidavit was appended without leave having been taken to amend. The object of requiring parties to obtain leave to amend is to give notice of the amendment to the adverse party. But it does not appear that the plaintiffs had notice of the amendment in this case until after the trial had commenced. They cannot therefore be held to have waived any right by going to trial without objecting to the amended plea. Nor could they…
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