Malone v. Lipscomb

• Decision Date: 01 January 1858
• Citation: 22 Tex. 609
• Parties: H. D. MALONE v. JAMES M. CRAIG. W. B. LIPSCOMB v. M. A. BRYAN.
• Court: Texas Supreme Court

22 Tex. 609

H. D. MALONE

v.JAMES M. CRAIG.

W. B. LIPSCOMB

v.M. A. BRYAN.

Supreme Court of Texas.

1858.

The plaintiff alleged that the defendant executed and delivered a note, of the following purport--giving a copy of the note, from which it appeared, that the name of the payee of the note, corresponded exactly with the name of the plaintiff: Held, that the petition was insufficient, because it did not allege that the note was executed and delivered to the plaintiff, or that he was the owner and holder of it.

A petition should state the plaintiff's cause of action by distinct averments, and not leave it to the court to deduce the existence of one fact, from the statement of another. 4 Tex. 452;20 Tex. 132; 22 Tex. 609; 24 Tex. 160, 158, 283;28 Tex. 543, 545, 798;30 Tex. 76.

ERROR from Washington. Tried below before the Hon. R. E. B. Baylor.

Suits by the defendants in error against the plaintiffs in error. In the first place the suit was brought by James M. Craig; and it was alleged in the petition, that Malone, for a valuable consideration, executed and delivered his promissory note, the purport and effect of which was as follows, to wit:

One day, after date, I promise to pay to J. M. Craig, or bearer, one hundred and seventy-seven dollars and forty-eight cents, for value received. Interest at ten per cent. per annum: this June 7th, 1855.

H. D. MALONE. [SEAL.]

Petitioner showed that though said note had long been due and payable, yet the defendant had hitherto wholly disregarded his promise to pay the same to petitioner. Damage five hundred dollars. Prayer for process and judgment for the amount due upon said note, etc.

In the second case, suit was brought by M. Austin Bryan, and the note sued upon was also payable to M. Austin Bryan, or order. There was judgment by default, in both cases.

J. D. and D. C. Giddings, for defendants in error, suggested delay.

In the case of Lipscomb v. Bryan,

Sayles and Bassett, for plaintiff in error.

BELL, J.

We are of opinion that the petitions in these two cases, do not state the cause of action of the plaintiffs, with sufficient precision and accuracy to entitle them to recover. In the case of Jennings v. Moss, 4 Tex. 452, it was said, that “to show a right of action, the plaintiff must allege title in himself, and some act of the defendant, creating a legal liability on his part.” It was said further, that, “the defendant's liability must be shown by averments.” The petitions before us aver that ...