Dean v. Border

• Decision Date: 01 January 1855
• Citation: 15 Tex. 298
• Parties: JOHN DEAN v. JOHN P. BORDER.
• Court: Texas Supreme Court

15 Tex. 298

JOHN DEAN

v.JOHN P. BORDER.

Supreme Court of Texas.

1855.

Where a bill of particulars of credits claimed by the defendant contained the item, “draft on Joseph Ables,” and the defendant offered to prove that Joseph Ables had given him a draft on the plaintiff which the latter accepted and promised to place to his credit, and the plaintiff objected on the ground that the evidence did not respond to the allegation, it was held that the evidence was improperly admitted.

Where the defendant claimed a credit for a draft which had been drawn by a third person on the plaintiff in favor of the defendant, and by him passed over to the plaintiff, with the understanding that it was to be placed to the defendant's credit, it was held that in the absence of any allegation in the answer that the draft had been thus passed over to the plaintiff, the latter ought to have been notified to produce it, in order to authorize the admission of secondary evidence thereof.

See this case as to the grant of a new trial on the ground of newly discovered evidence, where such evidence consists of admissions made by the adverse party after the retirement of the jury.

Appeal from Leon. This was a suit on two promissory notes for about $3,000, with a prayer for the enforcement of a lien to secure the same on a certain steamboat. The defendant pleaded payment, and in reconvention. Verdict for the defendant for $669.59. Motion for a new trial on grounds which appear in the opinion. The newly discovered evidence was that defendant had admitted, after the jury retired, to the counsel of the plaintiff, whose affidavits were produced, that on a fair settlement the plaintiff would not owe him anything. Remittitur of $222.06. Motion for new trial overruled. The other facts, as far as it is material to state them, appear from the opinion.

A. M. Lewis, for appellant.

WHEELER, J.

We are of opinion that the court erred in admitting parol evidence to charge the plaintiff upon the draft on Ables, for the causes assigned in the bill of exceptions: first, that the evidence did not conform to the plea; and secondly, that the draft was not produced, nor was notice given to the plaintiff to produce it. The only description given of the draft in the defendant's pleading was in the specification of items of payment annexed to the plea; and this described it simply as a “draft on John Ables,” whereas the witness testified of a conversation about a draft, which he understood was drawn by Ables on Dean. It is very clear that evidence of a draft drawn by Ables on Dean would not support a recovery upon an averment of a draft drawn on Ables. But if the witness may be supposed to have been mistaken in the less material matter of the particular direction of the draft, and it may be taken that his testimony related to the draft referred to in the plea, as perhaps it might, had a proper foundation been laid for the introduction of parol evidence to prove the contents of the draft, still, the objection is not removed, that no foundation was laid for the introduction of such evidence. No notice was given to the plaintiff to produce the draft; nor did the plea apprise the plaintiff that the defendant intended to charge him with the possession of it. When the instrument is in the hands of the adverse party to lay the foundation for the introduction of parol evidence of its contents, notice must be given to him or his attorney to produce it. To this rule requiring notice, there are, it is true, exceptions; as first, where the instrument to be produced and that to be proved are duplicate originals; secondly, where the instrument to be proved is itself a notice, such as a notice of the dishonor of a bill;...