Coburne v. Poe

• Decision Date: 01 January 1874
• Citation: 40 Tex. 410
• Parties: HENRY COBURNE v. ROBERT W. POE.
• Court: Texas Supreme Court

40 Tex. 410

HENRY COBURNE

v.ROBERT W. POE.

Supreme Court of Texas.

1874.

1. When the assignee of a note upon which suit is brought fails to allege in his petition that he acquired the same before maturity, it is not necessary that the defendant, who is the maker, should aver in his answer that plaintiff acquired the note after its maturity, to authorize evidence upon defenses set up in the answer which would defeat a recovery as against the original payee, or an assignee with notice.

2. The production in evidence by a plaintiff of the note upon which he sues as assignee raises a prima facie presumption of the truth of an averment in his petition that it was transferred to him before maturity; but no such presumption can exist in the absence of such an averment.

3. Errors committed in the court below will not be made a cause for reversal of judgment unless they are distinctly specified in the assignment of errors.

4. The exception to this rule heretofore announced, “That objections which go to the foundation of the action will be considered, though not specially assigned as error,” limited to those cases where the matters of error are so obvious that the court would be doing injustice to sanction the judgment rendered below.

APPEAL from Rusk. Tried below before the Hon. J. B. Williamson.

Drury Field, for appellant.

James H. Jones, for appellee.

ROBERTS, CHIEF JUSTICE.

This is an action on a note for $100, payable one day after date, to J. O. Evans, or bearer, and dated the fourteenth day of November, 1864. In the petition by plaintiff below, Henry Coburne, filed twenty-eighth of April, 1873, it is alleged that he “is the lawful holder and owner of the same.”

The answer of the defendant contained a general denial and a special plea that, by the understanding of the parties at the time of its execution, the note was given to be paid in Confederate treasury notes.

It is not alleged, either in the petition or the special plea, when the plaintiff acquired the note from the payee.

The court charged the jury, in substance, that if they were satisfied that the note was given for Confederate treasury notes, they must find for the defendant; which they did, and judgment was rendered accordingly.

As appears by the statement of facts, the only evidence on the trial besides the note was that of the defendant, Poe, who swore that the note was to be paid in Confederate treasury notes; that he and the payee were soldiers in the Confederate army; that the note was given by him as difference in an exchange of horses, and that, although it was not expressly mentioned at the time of the swap what sort of money was to be paid, it was expressly understood between them that it was to be paid out of his wages on the first pay-day, and that no other sort of money was ever paid to them in the army, of which Evans was well aware at the time the note was executed.

When these facts were proposed to be proved by Poe, plaintiff objected to it, “because plaintiff is the assignee of the note sued upon, and it is not averred in the answer that plaintiff obtained the same after maturity, or had had notice of the defense set up by defendant.” This objection being overruled by the court, the plaintiff excepted to the ruling, which is set out in the statement of facts contained in the transcript of the record.

The plaintiff moved for a new trial upon the following grounds:

1. Because the court erred in admitting the evidence of R. W. Poe, to show that the note was given for Confederate money, as against this plaintiff, there being nothing in the defendant's answer to authorize the same.

2. Because the jury found for defendant against the charge of the court and without evidence.

3. Because the jury found a verdict for defendant without and against evidence.

The court overruled the motion for new trial, and the plaintiff gave notice of appeal, and assigned as error the admission of Poe's evidence over the objection of plaintiff, and the overruling the motion for new trial. The effect of the assignment of errors is simply to bring in review the grounds set out in the motion for new trial.

The evidence was sufficient to sustain the special plea of defendant, which had not been excepted to as defective. The verdict was responsive to the charge of the court, and could not well have been otherwise than it was under the charge.

The objection to the admission of the testimony of Poe is predicated on the assumption that the facts proved by Poe would be a good defense to the note in the hands of the plaintiff only in the event that he had acquired the note after maturity, which he could not be allowed to prove, as he had not alleged it in his special plea, and therefore it was useless to prove any part of it, even that which was alleged in the plea thus defective. The shape of the...