There is nothing in the record to show that the demurrer filed on the 11th day of May, 1858, to the second amended petition of the plaintiff, was acted on by the court below-, and we-might properly decline to notice the argument of counsel in support of the proposition, that the court below erred in overruling the said demurrer. But as we infer from the whole record that the court below did overrule the demurrer, as the question upon the demurrer, if left undecided, would arise upon another trial, we think proper to express the opinion that the court below did not err in overruling the demurrer to the second amended petition. It is well settled that in such cases as the present, the new promise constitutes the cause of action. If the plaintiff had instituted his suit, based upon the new promise, at the same time that he filed his second amendment, it cannot be doubted that he might have relied upon the defendant’s absence from the State to take-the suit upon the new promise out of the operation of the statute of limitations. And we are not able to perceive that the rule should be changed because the defendant had answered to the suit upon the old cause of action, and was therefore in court, in contemplation of law, from the time of his original answer. If the defendant had not taken issue upon the amended petition setting up the new promise, it would have been the duty of the plaintiff to have caused a copy of it to be served upon him,. (Morrison v. Walker, 22 Tex., 18 ;) but in the present case the defendant appeared and took issue, and there is, therefore, no question of service in the. case.
*119We are, however, of opinion that the verdict of the jury is not supported by the evidence, and that the court below erred in overruling the motion for a new trial upon that ground. It is clearly shown that the defendant Erskine was indebted to Wilson by virtue of certain notes other than the note sued on. The letter of Erskine, which is relied on as evidence of an acknowledgment of the debt now sued on, has unmistakable reference to the other indebtedness upon notes for three hundred and fifty dollars, which were, or had been, in the hands of Fisher for collection. The letter contains no intelligible allusion to the note which is the foundation of the present suit. Where there is a written acknowledgment of indebtedness, and no other indebtedness than that which is the foundation of the suit is shown to have existed between the parties, then the acknowledgment will be held to refer to the indebtedness alleged in the petition; but where another debt than the one sued on is shown to have existed, to which the acknowledgment plainly refers, then it ought not to be held to refer to the debt sued on, unless the debt sued on is also embraced in the terms of the acknowledgment.
We are of opinion that the letter of Erskine, which is relied on, is not sufficiently explicit to sustain the allegation of a new promise to pay the note sued on. A new promise to pay is a contract, and whether or not a contract has been made, is at last a question of law to be determined by the court. It is for the jury to find the facts, that is to ascertain what passed between the parties; but if what passed between the parties does not amount to a contract, then it is the province of the court so to declare. We are of opinion that .the evidence in the present case is not sufficient to sustain the verdict. The judgment of the court below is therefore reversed and the cause remanded.
Reversed and remanded.