¶1Appellant brought suit against Wilkinson on an open account running in date from 1870 to 6th March, 1871.
¶2The suit was brought on the 10th day of September, 1873. Wilkinson is alleged to he a citizen of the State of Missouri, and the proof shows that he never resided in Texas.
¶3He was cited by publication, and came in and filed a demurrer and answer, denying all indebtedness and pleading limitation. On the 7th of February, 1874, plaintiff filed an amended petition in which this allegation occurs: "And the said Zeigler, his agent, executed his notes during his agency aforesaid, wherein the justice of the debt was duly acknowledged and promise of payment made in compliance with said demand. The said Wilkinson at all times acknowledged the agency of said Zeigler, and also the justice of said demand, and stated to your petitioner that he has arranged with his said agent to pay the same.”
¶4This is the only allegation touching the notes. If the notes were made the basis or cause of action, it requires no argument to show that there was no such allegation in the *472plaintiff’s pleadings as would authorize him to maintain the suit.
¶5If the suit is to be treated as having the open account for a basis, then the execution of the notes was. a satisfaction of the account, and a recovery could not he had on it.
¶6If the notes were of any validity at all against Wilkinson, they certainly closed the account.
¶7There is no allegation, however, that Wilkinson “ made, executed, and delivered the notes,” either in person or by Zeigler, his agent. (Jennings v. Moss, 4 Tex., 451.)
¶8It is treated as a suit against Wilkinson alone until the amended petition was filed, in which the prayer is made for judgment against Wilkinson and Zeigler.
¶9The verdict is very meager. It is as follows: “ We, the jury in this case, find in favor of the plaintiff.”
¶10This verdict would warrant a judgment against Zeigler as well as Wilkinson, yet it is rendered against Wilkinson alone.
¶11There is no replication to the plea of limitation, and it is believed that the account was barred. If it be said that the execution of the notes took the case out of the operation of the statute, the answer is that the notes were not sued on, or were not the cause of action set out.
¶12If the notes are sued upon, the issue will then arise whether Zeigler was or was not authorized by Wilkinson to sign the notes.
¶13The introduction of the notes in evidence was objected to, and the objection should have been sustained. There were no allegations to charge Zeigler, and they were not made the basis of the suit against Wilkinson, and it was error to admit them in evidence. In regard to the proof as to Zeigler's agency, we will only remark that the proof does not by any means render it certain that he was Wilkinson’s agent for any purpose connected with this debt. The account is made out against Zeigler.
¶14The notes do not purport to be the notes of Wilkinson, *473and Zeigler swears, against his own interest, that he never was agent for Wilkinson; that the debt was his individual debt; and that the notes were his and not Wilkinson’s.
¶15Reversed and remanded.