If plaintiff's cause of action had not accrued at the time his original petition was filed, the defect was cured by filing the amendment more than a year thereafter. Culbertson v. Cabeen,29 Tex. 254; Cox v. Reinhardt, 41 Tex. 594 [41 Tex. 594]. No complaint is made of the failure of the court to tax the costs accrued prior to the filing of this amendment against the plaintiff. Dalton v. Rainey, 75 Tex. 516 [75 Tex. 516].
That part of the ninth paragraph of the charge which instructs the jury, "that choses in action are not subject to execution, and that no title thereto can pass by execution sale, and that an unsatisfied mortgage upon personal property is a chose in action," should not have been given. The jury probably understood this as meaning, that the execution sale under the judgment in case of Brown v. True and Wyness passed nothing to Bayse, who was the purchaser thereat of True's interest in the stock of horses. If the bill of sale from True to Scott McReynolds was intended to have effect only as a mortgage, the mortgagor's interest would still be subject to sale under execution in a proper manner. Rev. Stats., art. 2296; Jackson v. Harby, 65 Tex. 710. There is evidence in the record, however, from which it would seem to have been agreed between the parties that this execution sale should be treated as a nullity, and Bayse as having acquired no interest thereunder. But this was not submitted in the charge, and the evidence as to a binding agreement of this kind having been made is not so clear that we would be authorized to treat the error above indicated as immaterial.
We think the court erred in the third paragraph of the charge given the jury, in holding defendants liable if plaintiff tendered payment of the notes before they became due, for two reasons. In the first place, the tender to which this charge refers was one claimed to have been made to the defendants after it is conceded they had parted with the notes to Bayse, and were therefore no longer entitled to receive the money tendered. Plaintiff only claimed to be entitled to defendants' one-third interest in the horses when the notes were paid. There was nothing in the transaction to prevent defendants from transferring the notes, and after such transfer, if plaintiff claimed the right to pay them before maturity, he *Page 78 should have made the tender to the then owner, not to the original payee. In the second place, the notes were made to mature at fixed dates, not on or before such dates, and bore interest from date until paid. The owner of such notes has the right to decline to receive payment thereof before the time fixed for their maturity. 2 Daw. on Neg. Inst., 4 ed., sec. 1233.
There was no evidence upon which to base the supposed case submitted in the charge, of plaintiff having been divested of his title to the horses by execution sale or voluntary transfer, prior to his signing the notes to defendants. The notes were executed September 6, 1889; the bill of sale to Scott McReynolds was made October 9, 1889; the execution sale under which Bayse purchased occurred December 7, 1889. This was, however, submitting a ground of defense without evidence to support it; and as the defendants failed, notwithstanding this charge, they would not be entitled to a reversal on account thereof, as plaintiff might have been had the result been different.
Before plaintiff should be held to be estopped by his failure to object to defendants transferring the notes and horses to Bayse, it must at least appear that he not only had knowledge that such transfer was being made, but also knew that defendants were acting under the belief that he consented thereto, or had inadvertently forgotten their agreement with him, and at the time were acting in ignorance thereof. The special charge upon this issue, as asked, was correctly refused.
The court erred in refusing to charge the jury, at the request of the defendants, that if plaintiff was only surety for Wyness, and if the contract was that he was to have defendants' interest in the horses in case he had to pay the notes, he could not recover upon proof of a voluntary payment made by him before maturity. Plaintiff's contention was, that to induce him to secure the notes of Wyness, defendants agreed to convey to him their one-third interest in the horses whenever the notes should be paid, no matter by whom. If the jury should find this to have been the contract, it would, of course, only be necessary for plaintiff to show that he had in fact paid the notes to the owner thereof. Whether the payment was voluntary, or made before or after maturity, would be a matter of no importance to defendants. If the owner of the notes saw proper to receive payment before the money became due, he had a right to do so.
The defendants, however, contended, that they were only to convey their interest in the horses to plaintiff if he had to pay the notes himself. If the jury should find this to have been the contract, it is clear it was to defendants' interest to have the notes paid by Wyness, instead of plaintiff, for in that case they would have both the money and the horses; while if plaintiff paid, they would lose the horses. Under such circumstances, plaintiff would not have the right to volunteer payment before maturity. It might be that defendants would prefer to keep the horses *Page 79 and not call on plaintiff for payment at all; and if the contract was as they claim it to have been, what was in the way of their doing this? If it be replied, that defendants had already placed it out of their power to comply with their contract, by conveying the horses to Bayse at the time they transferred him the notes, the answer is, this made it so much the more to their interest to have the notes paid by Wyness, because, if plaintiff was compelled to pay, this would require them to account to him for the value of the horses, which would consume the greater part of the amount they would receive on the notes.
We conclude, if the contract was as defendants allege it to have been, plaintiff does not make a case by showing a voluntary payment of the notes by him as surety, before their maturity, without the consent of the defendants.
The other errors assigned need not be considered.
The judgment of the court below will be reversed, and the cause remanded for a new trial in accordance herewith.
Reversed and remanded.