Herndon v. Ennis

• Decision Date: 01 January 1857
• Parties: J. H. HERNDON v. CORNELIUS ENNIS AND ANOTHER.
• Court: Texas Supreme Court

18 Tex. 410

J. H. HERNDON

v.CORNELIUS ENNIS AND ANOTHER.

Supreme Court of Texas.

1857.

Where the defendant filed a general denial, and several special denials, in different forms of expression, of a particular fact, to which special denials the court below sustained a general exception, this court said that as the fact specially denied was put in issue by the general denial, defendant had sustained no injury by the ruling of the court below, and that though it had been erroneous, it would not authorize a reversal of the judgment.

It would seem that where an instrument or note in writing on which any pleading in a suit is founded, or any indorsement of such instrument or note in writing, purports to have been made by an agent, such instrument or note or indorsement is admissible in evidence under the statute (Hart. Dig. art. 2524) without proof of the authority of the agent, unless an affidavit be filed denying such authority.

Appeal from Brazoria. Tried below before the Hon. James H. Bell.

Suit by appellees, Cornelius Ennis and James R. Ennis, partners trading under the style of C. Ennis & Co., against appellant, on three several promises in writing to pay money. The plaintiffs claimed by indorsement of “H. B. Andrews & Co., by E. M. Tyne.” The promises in writing were filed with an amendment of the petition. Defendant filed a general demurrer and general denial.

Afterwards defendant took leave to amend, and repeated his general demurrer and general denial, and added several special denials, in different forms of expression, of the authority of Tyne, to make the indorsements; these denials were not supported by affidavit. Plaintiff excepted in general terms to the amended answer; and said exception was sustained as to the special denials. The statement of facts showed that the only evidence before the jury were the promises in writing and the indorsements. It did not appear to have been objected when the indorsements were offered in evidence, that the authority of Tyne was not proved. It did not appear that any instructions were given or refused. Motion for new trial overruled.

Wharton & Terry, for appellant, cited Hart. Dig. art. 2524.

P. MacGreal, for appellees, in addition, cited Reid v. Reid, 11 Tex. 591.

WHEELER, J.

The defendant sustained no injury by the ruling of the court, sustaining exceptions to so much of the answer as specially denied the authority under which the note purported to be made. The special traverse put in...