Ellis v. Howard Smith Co.

• Decision Date: 20 April 1904
• Parties: ELLIS v. HOWARD SMITH CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

80 S.W. 633

ELLIS v. HOWARD SMITH CO.^*

Court of Civil Appeals of Texas.

April 20, 1904.

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Action by the Howard Smith Company against Amanda M. Ellis, as independent executrix of the estate of L. A. Ellis, deceased. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Jacob C. Baldwin, for plaintiff in error. R. W. Franklin and H. F. Ring, for defendant in error.

NEILL, J.

This suit was brought by defendant in error, a private corporation, chartered under the laws of this state, against plaintiff in error, Amanda M. Ellis, as independent executrix of the estate of L. A. Ellis, deceased, to recover the sum of $744.01, besides interest and attorney's fees, upon a promissory note, and the further sum of $381.50, alleged to be due upon a certain contract described in defendant in error's original petition, and to foreclose a mortgage on certain property sold by defendant in error to plaintiff in error, for which the amounts due on the note and contract are part of the purchase money. It was alleged in defendant in error's original petition, upon which the case was tried, that the business of the estate of plaintiff in error's testator was carried on in the name of L. A. Ellis at and prior to the time when the contract was made and the note executed, and that they were made and executed in such name by plaintiff in error acting through her son, C. G. Ellis, as her agent and attorney in fact, with full power and authority from her, as executrix of said estate, to act and represent the estate in all matters pertaining thereto in Ft. Bend county, Tex. It also appears from the averments in defendant in error's petition that at the time the property was purchased for which the note and contract sued on were made the estate of plaintiff in error's testator had and was carrying on a business in Ft. Bend county, Tex., and that the property was purchased for and used for the benefit of the estate in carrying on and operating such business. The plaintiff in error answered by a general demurrer, which was not presented to the court, and a general denial. Her answer in no way traversed the allegations that the contract and note sued on were made by her as executrix, through her authorized agent, or that they were made and executed for property purchased by her as executrix from defendant in error for the benefit of the estate of her testator, and actually used and operated in carrying on the business of such estate. The case was tried before a jury, who, in obedience to a peremptory instruction from the court, returned a verdict in favor of defendant in error for the amount sued on, and establishing the alleged mortgage lien. There is no statement of facts in the record, nor does it appear from it that any objection was made, either by motion for a new trial or in arrest of judgment, to the verdict or judgment and decree thereon entered. The only assignment of error is this: "The trial court erred in rendering judgment for plaintiff in any amount, for the reason its petition was wholly insufficient to sustain a judgment against the executrix and estate represented by her for any sum whatever."

If it should be conceded that the petition of defendant in error would have been held bad on demurrer, no demurrer having been interposed, if defective at all, the defects were such as, in our opinion, were cured by the verdict. A verdict will not only aid a defective allegation, but it extends sometimes even to cure an omission altogether to make...