Johnston v. Jefferson

• Decision Date: 31 October 1868
• Citation: 31 Tex. 332
• Court: Texas Supreme Court
• Parties: JOHNSTON, MCNEELY & CLEMONS v. E. A. JEFFERSON AND HUSBAND.

31 Tex. 332

JOHNSTON, MCNEELY & CLEMONS

v.E. A. JEFFERSON AND HUSBAND.

Supreme Court of Texas.

October, 1868.

When the suit is upon a note executed by the husband and wife, and the plea of non est factum is not sworn to, it is error to charge the jury upon the execution of the note or the authority to execute it. Pas. Dig. art. 1443, note 549.

ERROR from Guadalupe. The case was tried before Hon. JOHN IRELAND, one of the district judges.

This was a suit by plaintiffs in error against defendants in error upon a note for $474.78, signed “E. A. Jefferson, by J. R. Jefferson.” The petition alleges that E. A. Jefferson, being indebted to plaintiffs for necessaries furnished herself and family, did, by her agent, J. R. Jefferson, make, execute and deliver the note to plaintiffs. The note was filed as part of the petition. There was indorsed upon the back of the note the following words: “Received payment of this note in C. S. treasury notes, the notes guarantied to be genuine by payor, November 26, 1863. William G. Webb, C. S. Receiver.” This indorsement was erased by lines being drawn across it.

This point, although in the proofs and the charge as controlling, was not noticed by the court.

The defendants answered by general denial, and further that, if they were ever indebted upon the note sued on, they had paid it to one William G. Webb, attorney or agent for plaintiffs, in the year 1863; that the payment was in full and was acknowledged by Webb while agent of the plaintiffs. The statement of facts shows the evidence adduced on the trial. There were verdict and judgment for defendants, motion for a new trial, which was overruled, and plaintiffs prosecuted this writ of error. The charge of the court, upon which the decision turned, assumed that the wife could not bind herself except for necessaries, and that she was not bound by the note unless it was given for necessaries and the wife authorized its execution.

John P. White, for the plaintiff in error. The argument was principally upon the effect of the Confederate sequestration.

W. E. Goodrich, for defendant in error. The argument was altogether upon the effect of the payment to the Confederate States receiver. But, as the point was not noticed by the court, the reporter has not felt authorized to give the history of the facts.

LATIMER, J.

The cause of action in this case was a note executed by a married woman, by her agent, the husband. The defense was, 1st, a general denial; 2d,...