Gray v. Osborne

• Decision Date: 01 January 1859
• Citation: 24 Tex. 157
• Parties: GEORGE H. GRAY AND OTHERS v. DANIEL C. OSBORNE.
• Court: Texas Supreme Court

24 Tex. 157

GEORGE H. GRAY AND OTHERS

v.DANIEL C. OSBORNE.

Supreme Court of Texas.

1859.

A petition, which merely alleges that the defendants are indebted to petitioner, as is evidenced by a certain promissory note, made a part thereof, but which, it is not averred, was either made, executed or delivered by the defendants, is bad, on general exception. 4 Tex. 452, 461;post, 159, 282.

Nor will the allegation, that one of the defendants executed and delivered a mortgage (the substance of which is set out), to secure the note, unless it be averred, that the mortgage discloses the fact, that the note was executed by the defendants, cure the defect.

The plaintiff must show a good cause of action, by appropriate averments of the facts which constitute it, and not merely state the evidence by which it may be maintained, or conclusions derived from the evidence.

ERROR from Travis. Tried below before the Hon. Alexander W. Terrell.

This was a suit by the defendant in error, against George H. Gray, Frederick W. Chandler, and Morgan C. Hamilton, the plaintiffs in error, on a promissory note for $518.06.

The plaintiff, in the petition, averred that the defendants were indebted to him in the sum of $518.06, with interest thereon from the first of July, 1857, “as is evidenced by a certain promissory note, which is prayed to be taken as a part of this petition.” A copy of the note was then set out in the petition; and, after the usual averments of the failure of the defendants to pay the note, and a prayer for judgment for the amount due, it was further alleged, that in order to secure the payment of the said note, George H. Gray did, on the 11th day of August, 1856, execute and deliver a mortgage on a certain tract of land, described in the petition.

The defendants filed a general exception, and also special exceptions and answers to the merits, which need not be noticed. There exceptions were overruled, and judgment was given against them for the amount of the note and interest, and a foreclosure of the mortgage, as to the defendant, Gray; and from this judgment, they prosecuted their writ of error.Shelley & Carrington, for the plaintiffs in error.

John T. Allen, for the defendant in error.

BELL, J.

The petition contains no allegation, that the note described in it was either made, or executed, or delivered by the defendants in the court below. The allegation of the petition is, that the defendants are indebted to the petitioner, as is evidenced...