On Rehearing.
Defendants in error have called our attention to an agreement of the parties in suit appearing in the record: “That the evidence was in conflict and was sufficient to go to the jury as to whether or not Tom Griffiths declared all of the installments on the note in question due in 1928,” thus challenging our finding that the record does not reveal that a right of acceleration existed in plaintiff to declare all of the note due, and that there was sufficient evidence to support the finding of the jury that plaintiff had so declared all installments due in 1928. In view of the related agreement, we adopt the findings of the jury as the *447findings of this court on the issue involved and to that extent the original opinion is corrected.
This observation leads us to further consider plaintiff in error’s assignment, based upon the action of the trial court in refusing to allow her to file a trial amendment bringing into the case an issue raised by the testimony of defendant Olin Travis to the effect that, between the time the note was declared due and the filing of the suit, he had been absent from the state for more than .twelve months; thus tolling the statute of limitation.
Trial, amendments usually arise in the rush of trial, due to matter overlooked in pleadings or suggested for the first time on introduction of evidence. The filing of such amendments are addressed to the discretion of the trial court, reviewable only on the abuse of such discretion, and where a proffered amendment is attended with inexcusable delay as to cause surprise to the other side, by injecting new and independent issues in the case, and thereby effect an unreasonable postponement or delay of trial, the trial court ordinarily would be justified in refusing to allow the filing of such amendment.
The four-year statute of limitation, in bar of plaintiff’s debt, was specially pleaded by the defendant Olin Travis, and on the trial it became the primary issue involved. So, to toll the statute of limitation, it was incumbent upon the plaintiff to plead and prove that the defendant was beyond the limits of Texas for a sufficient length of time to except such period from the four years intervening between the accelerated due date of the note as found by the jury (September, 1928) and the filing of the suit on January 27, 1933.
The absence of the defendant from the state was peculiarly within the knowledge of said defendant, and his own testimony suggested the filing of the amendment; Obviously, under such circumstances, the proffered amendment would have raised no controverted issue of fact for the determination of the jury would have worked no surprise or caused delay in the trial of the case. The amendment and admission would have merely raised a question of law, determinable by the court, excepting from the four-year statute of limitation the period of defendant’s sojourn from the state. Indeed, plaintiff’s attorney may have been negligent, inexcusably tardy in offering the amendment, he having waited until the jury was about to turn in its verdict, yet the matter presented was of such a nature that it could not have effected 'the controverted issue of fact submitted to the jury, would have delayed the trial but 'a few minutes, if any, and certainly would have caused no surprise to the adverse side. So, we think the ends of justice required that the plaintiff be permitted to file the trial amendment and that the action of the trial court in the premises was reversible error.
Motion for rehearing is overruled.