Capps v. Olive

• Decision Date: 25 April 1894
• Citation: 26 S.W. 471
• Parties: CAPPS v. OLIVE et al.
• Court: Texas Court of Appeals

26 S.W. 471

CAPPS v. OLIVE et al.

Court of Civil Appeals of Texas.

April 25, 1894.

Appeal from Tarrant county court; W. D. Harris, Judge.

Action by Olive & Sternenberg against Capps. From a judgment for plaintiffs, defendant appeals. Reversed.

S. B. Canty, for appellant. W. R. Sawyers, for appellees.

Reasons for Reversal.

STEPHENS, J.

Appellees sued appellant upon two promissory notes. Among other defenses, he pleaded what was termed a "failure of consideration;" alleging, in substance, that he had assumed to pay a certain indebtedness due plaintiffs from one Hartsfield, and that, by the false and fraudulent representations of plaintiffs as to the amount of said indebtedness, he had been induced to execute the notes for a much greater sum than was due. This plea was not sworn to, but plaintiffs announced "Ready for trial" without filing any exceptions to the answer. The defendant presented his first application for a continuance, which seems to have fully complied with the statute, and its sufficiency is not controverted on this appeal. The continuance was refused on the ground, as appears from the court's explanation appended to the bill of exceptions, that no such answer had been filed as presented an issue that could be tried. The answer also contained an unsworn plea of non est factum.

In the case of Williams v. Bailes, 9 Tex. 61, the plaintiff went to trial without excepting to the sufficiency of a plea impeaching the consideration of the instrument sued on, which was not supported by affidavit, and sought to avail himself of this defect on the trial by objecting to evidence offered in support of the plea. But it was ruled on appeal, in that case, that the exclusion of such evidence was reversible error; that, by going to trial without excepting to the plea, this defect was waived. This case, if the plea in question be treated as alleging a failure of consideration, seems to be directly in point, and has never, so far as our knowledge extends, been overruled, but, on the contrary, has been several times cited with approval. If it be erroneous to exclude testimony under such circumstances, it would likewise be erroneous to refuse a continuance to procure testimony on the ground of its inadmissibility. We have not been cited to any case in which it has ever been held that testimony offered in support of a plea of non est factum should be excluded on such a ground, though it has been held that such unverified plea may be treated as a...