Close v. Judson

• Decision Date: 01 January 1870
• Citation: 34 Tex. 288
• Parties: HIRAM CLOSE v. JUNIUS JUDSON.
• Court: Texas Supreme Court

34 Tex. 288

HIRAM CLOSE

v.JUNIUS JUDSON.

Supreme Court of Texas.

1870.

1. Letters alleged to have been written by a defendant to the plaintiff, and containing acknowledgments of indebtedness, may be made the foundation of a petition, within the purview of article 1443, Pas. Dig.; and when so made they are admissible in evidence without proof of their execution, unless the defendant has denied their execution by plea under oath.

2. The plaintiff's petition alleged that the defendant owed him a certain amount for certain machinery, and then proceeded to aver that the defendant had acknowledged the indebtedness in letters written by him to the plaintiff on certain dates. Copies of the letters were exhibited with and “made parts of the petition;” but no direct allegation was made that the petition was “founded in whole or in part” upon the letters: Held, that the averments sufficed to make the letters the foundation of the action.

APPEAL from Galveston. Tried below before the Hon. George R. Scott.

The appellee sued for $2,500, proceeds of machinery consigned by him to appellant in the year 1859, and alleged to have been sold for account of plaintiff.

The petitioner alleged that by two letters written to him on the third of July and the twelfth of September, 1860, by the defendant, the latter had acknowledged the sums of $1,000 and $1,500, to be due the plaintiff on account of the machinery. Copies of these letters were filed with the petition and “made parts” thereof in the usual phraseology, but it was not averred in more direct terms that the petition or action was “founded” upon them.

In unsworn answers the defendant denied the indebtedness and the execution of the letters.

There was verdict for the plaintiff for $2,725, and judgment accordingly. When the letters were offered as evidence by the plaintiff, the defendant objected on the ground that the plaintiff must first prove their execution. The court overruled the objection, and the defendant excepted. The ruling was assigned as error.

P. C. Tucker, for the appellant.

Ballinger, Jack & Mott, for the appellee.

WALKER, J.

This was an action brought in the district court, in which the plaintiff set out in his petition the statement of an account between himself and the defendant, and made by the defendant; also two letters written by the defendant to the plaintiff, in which the defendant acknowledged certain sums of money due from him to the plaintiff. These instruments were made the...