Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 74
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74 A. & N. W. R'Y Co. v. DANIELS. [Austin Term,
Opinion of the court.
G. G. Anderson, as well as against this defendant, because the
claims sued on are not open accounts within the purview of article
2266, Revised Statutes."
"5. The court erred in admitting said accounts and affidavits, as
set forth in defendant's bill of exceptions, as against this defendant,
to establish the lien as claimed by plaintiff, because the alleged lien
against this defendant is not an open account within the meaning
of the statute, and because the evidence so admitted was inadmissible
and incompetent to establish such statutory lien.
6. The court erred in admitting said accounts and affidavits for
any purpose over defendant's objections as shown by said bill of
These assignments of error are well taken. The items of account
relied on by the plaintiff, as constituting his cause of action, were
not open accounts within the meaning of article 2266, Revised Statutes.
The subject has been so fully expounded in recent cases that
we deem it sufficient to refer to them as decisive in this case. The
evidence objected to, and which was admitted, constituted all the
evidence introduced to establish the accounts, and the judgment
was predicated upon it.
It was essential, under section second of the act, in order to entitle
the plaintiff to have the benefit of the lien claimed, to make
satisfactory proof that the labor had been performed at the instance
of the subcontractor, and "that such wages are due." The failure
to make such proof by competent and admissible evidence must
have the effect to reverse the judgment and remand the cause.
On the question involved as to what character of accounts are admissible
under sworn statements as to their correctness, as " open
accounts " within the meaning of article 2266, Revised Statutes, see
McCammant v. Batsell, 1 Tex. Law Review, 337; Tex. & St. Louis
R. R. Co. v. Smith, 2 Tex Law Review, 366; Murray v. McCarty, 3
Tex. Law Review, 94.
We conclude that the judgment ought to be reversed and the
REVERSED AND REMANDED.
[Opinion adopted June 24, 1884.]
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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 Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/96/: accessed July 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .