Altgelt v. Emilienburg
| Decision Date | 08 May 1885 |
| Docket Number | Case No. 1501. |
| Citation | 64 Tex. 150 |
| Parties | EMMA ALTGELT v. F. EMILIENBURG. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Bexar. Tried below before the Hon. G. H. Noonan.
The opinion states the facts.
Minter & Altgelt, for appellant, cited: Banking Co. v. Stone, 49 Tex., 15;Hall v. Jackson, 3 Tex., 305;Towner v. Sayre, 4 Tex., 30;Mims v. Mitchell, 1 Tex., 443;Guess v. Lubbock, 5 Tex., 538;Lemmon v. Hanley, 28 Tex., 227;Love v. McIntyre, 3 Tex., 12; Rule 20, District Court.
L. N. Walthall and Wm. Aubrey, for appellee, cited: Bailey v. Hicks, 16 Tex., 222;Texas Trans. Co. v. Hyatt, 54 Tex., 215; Sayles & Bassett, Pl. and Prac., secs. 20, 21; Doogood v. Rose, 9 Man., Grang. & Scott, 132; S. C., 67 E. C. L., 131.
The contract upon which this suit was founded bound the appellee to build a fence between the lands of himself and appellant before November 1, 1883, and to furnish all the material necessary for that purpose. It bound Mrs. Altgelt to pay the appellee $86.37 for the work, at such times as he might need the money for the purchase of material. Neither party could recover damages for the breach of this contract unless there was a performance or willingness to perform what the complaining party had agreed to do on his or her part. Hence Mrs. Altgelt, in suing Emilienburg for damages, alleged a part performance of her stipulations, and a willingness to comply with the remainder. She further charged that, notwithstanding that she was in default in no respect, the appellee had refused to carry out the obligations assumed by him.
The general denial pleaded by the appellee put her upon proof of all these allegations. It was, in effect, a special denial of each separate averment material to the plaintiff's case. It was as much a denial of performance, or willingness to perform, the contract on the part of Mrs. Altgelt as of any other allegation in the petition. Hence any proof she might introduce to establish these particular averments was liable to be combatted under the appellee's pleadings by showing a refusal on her part to pay any portion of the $86.37 on demand, when needed for material. The evidence of Emilienburg to which the appellant objected was in the line of just this character of proof. It was in direct rebuttal of the evidence offered by Mrs. Altgelt to show that the appellee refused to go on with the work without sufficient reason, or for a cause different from that stated in her testimony. It was in disproof of...
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Texas & P. Ry. Co. v. Perkins
...cause was admissible to aid the jury in determining such issue. G., H. & S. A. Ry. Co. v. Henry & Dilley, 65 Tex. 685, 689; Altgelt v. Emilienburg, 64 Tex. 150; Boynton v. Tidwell, 19 Tex. 118, 121. Such testimony in this case, if any, did not, in the absence of pleading, raise an issue wit......
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K. Tideman & Co. v. McDonald
...because one of the essential elements of a contract was lacking. This evidence was admissible under the general denial. Altgelt v. Emilienburg, 64 Tex. 150; Martin v. Mitchell, 32 Tex. Civ. App. 385, 74 S. W. 565; Hardin v. St. L. S. W. Ry. Co. (Tex. Civ. App.) 88 S. W. 440; Moody & Co. v. ......
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State Bank of Wheatland v. Bagley Bros.
... ... lien. A general denial puts in issue every material fact ... alleged in the plaintiff's petition. Altgelt v ... Emilienburg, 64 Tex. 150; Tisdale v. Mitchell, ... 12 Tex. 68; Herndon v. Ennis, 18 Tex. 410. 'We ... have abolished all common-law forms ... ...
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Abel v. Maxwell Hardware Co.
...can prove any fact the effect of which would be to disprove or deny allegations in the pleadings of the adverse party, such as Altgelt v. Emilienburg, 64 Tex. 150; Gulf, C. & S. F. Railway Co. v. Booton (Tex. Sup.) 15 S. W. 909; Winn v. Gilmer, 81 Tex. 345, 16 S. W. 1058; S. A. & A. P. Ry. ......