121 S.W. 1132
STADTLER 
v. 
SOUTH TEXAS LUMBER CO.
Court of Civil Appeals of Texas.
October 16, 1909.
        Appeal from District Court, Freestone County; L. B. Cobb, Judge.
        Action by the South Texas Lumber Company against C. H. Stadtler. From a judgment for plaintiff, 
defendant appeals. Affirmed.
        D. T. Garth, for appellant.
        BOOKHOUT, J.
        This is a suit by appellee to recover of appellant on two accounts for lumber alleged to have been 
sold by appellee to appellant and one Hayes, composing the firm of Stadtler & Hayes. It was alleged that 
Hayes was insolvent, and the suit was brought solely against Stadtler. Defendant answered by general 
and special exceptions, denial under oath of the justness of the accounts sued upon, except as to 
$242.84, and accord and satisfaction. A jury was waived, and the cause was tried by the court, resulting 
in a judgment for plaintiff for $2,404.66,
Page 1133
the amount claimed in the petition. Defendant perfected an appeal.
        Appellant's first assignment of error, which is also submitted as a proposition, is as follows: "The 
lower court erred in rendering judgment for appellee, South Texas Lumber Company, against defendant, 
C. H. Stadtler, as the judgment is without evidence to support same, is contrary to the law and evidence, 
and wholly against the great weight and preponderance of the evidence." This assignment is not 
sustained. The suit was on two open accounts, which were itemized and alleged to be attached to the 
petition, and designated, respectively, as "Exhibits A and B." These accounts were for lumber sold and 
delivered by plaintiff to Stadtler & Hayes to be used in the erection of the St. Agnes Academy and the 
Brazos Hotel at Houston, aggregating $2,404.66. Stadtler & Hayes had contracts for the erection of these 
buildings, but failed to complete them, and the owners took charge of and completed them. After they 
failed on their contracts and the respective owners had taken charge of the properties and completed the 
buildings, the appellant Stadtler and Timmons, the agent of plaintiff, went over the accounts between 
plaintiff and defendant and agreed upon the amounts due plaintiff for each of the respective jobs, and 
Stadtler gave orders on the St. Agnes Academy and Brazos Hotel for the lumber sold by plaintiff to 
defendant for each of these buildings. The evidence in our opinion was sufficient to show that the items 
set forth in the accounts sued on were correct, and that defendant owes plaintiff the respective amounts 
therein charged, aggregating the amount of the judgment.
        The second assignment of error is as follows: "The lower court erred in overruling defendant C. H. 
Stadtler's plea to the jurisdiction of the court because the evidence is uncontroverted that the lawful 
amount in controversy in this case was less than $500, that the evidence showed that all sums sued upon 
as due by said account over and above $500 was barred by the two-year statute of limitation." This 
assignment is submitted as a proposition. The defendant plead limitation to a part of the items sued on, 
alleging that the lumber was to be paid for as sold and delivered. The plaintiff replied that the amounts 
were not to be paid until the buildings were completed, and that less than two years had elapsed from the 
completion of the buildings to the time of filing suit. There was evidence both ways on this issue, and the 
trial judge found in favor of plaintiff, and, there being evidence to support his finding, this assignment is 
overruled.
        It is contended that the trial court erred in admitting certain testimony of the plaintiff's witness A. D. 
Timmons. While A. D. Timmons was testifying for plaintiff, he was asked the following question: "State 
whether or not the items for lumber and material as charged therein (the accounts sued on) were sold to 
Stadtler & Hayes by plaintiff, and whether or not the items were just and true," to the answer to which 
question defendant objected, because the account sued upon by plaintiff was denied by defendant under 
oath, and could only be proved up by original and best evidence and the evidence offered was only 
secondary evidence, and was not admissible; (2) that the account as undertaken to be proved up by said 
witness Timmons was not shown to be compared by said witness to the books of the South Texas Lumber 
Company nor books of original entry; (3) that the account as attempted to be proved up by said witness 
had not been compared to the account sued upon, and was not shown that it was in fact a copy of the 
account sued upon by plaintiff, nor were any of the items therein shown to be the same items as in the 
account sued upon by plaintiff. The court overruled the objections of the defendant, and the said witness 
testified as follows: "The account I now examine which is attached to the deposition of H. A. Hurt was sold 
to Stadtler & Hayes by the South Texas Lumber Company. It was made by Mr. Stadtler to build the St. 
Agnes Academy and Brazos Hotel. I went over the account with Mr. Stadtler, and he O. K'd. it. He gave 
me an order on the owners of the buildings for the money due us on the account he and I went over." 
There was no error in admitting the testimony to show that the items of the respective accounts were 
admitted by Stadtler as correct, and that he gave an order on each of the owners of the buildings for the 
accounts then owing. It is not claimed that either of these orders had been paid, and the evidence, as a 
whole, is sufficient to show that the exhibits attached to the petition are for the same accounts admitted 
by Stadtler to be correct.
        Finding no error in the record, the judgment is affirmed.