Adcock v. Creighton

• Decision Date: 20 November 1901
• Citation: 65 S.W. 42
• Parties: ADCOCK v. CREIGHTON.
• Court: Texas Court of Appeals

65 S.W. 42

ADCOCK v. CREIGHTON.

Court of Civil Appeals of Texas.

November 20, 1901.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by J. W. Adcock against J. J. Creighton. From a judgment in defendant's favor, plaintiff appeals. Affirmed.

J. T. Sluder, for appellant. T. A. Blair, for appellee.

KEY, J.

This action was brought by appellant on a promissory note for $800 executed by appellee, and reserving a lien on certain real estate. The plaintiff conceded that all the debt had been paid, except $122, and asked a judgment for that amount, with a foreclosure of the lien on the land. The defendant admitted the execution of the note, but alleged that in the contract for the purchase of the land the consideration to be paid by him therefor was $1,450,—$100 cash, the assumption by him of the payment of one-half of a prior incumbrance on the land, represented by the plaintiff to be $900, and the $800 stipulated in the note sued on. He charged in his answer, and the testimony warrants a finding, and in support of the judgment we find, that the plaintiff fraudulently represented to him that the amount of the incumbrance was only $900, when in fact it was $1,080; that the defendant, relying upon said representation and believing it to be true, agreed to pay half of said incumbrance, which was $540; and that he has paid to the plaintiff all the residue of the $1,450 which he agreed to pay for the land.

The first assignment of error complains of the action of the court in overruling plaintiff's general demurrer to the defendant's answer. It is not submitted as a proposition, and is not followed up by any proposition or statement; and, under the well-known rules regulating the practice in our appellate courts, the assignment is not presented in such manner as to entitle it to consideration.

The second assignment, which complains of the court's refusal to sustain special exception No. 1 to the defendant's answer, is overruled. We think the averments of the answer charging the plaintiff with fraudulent representations were sufficient. That exception did not challenge the defendant's answer because it was not sworn to, and therefore the proposition under the assignment raising that question is not germane to the assignment. In fact, no exception was addressed to the defendant's pleading because it was not verified by affidavit, and that question cannot be presented for the first time in this court.

No error was committed in...