Moody v. Jewell

• Decision Date: 31 October 1866
• Citation: 28 Tex. 545
• Court: Texas Supreme Court
• Parties: THOMAS O. MOODY v. BENGE & JEWELL.

28 Tex. 545

THOMAS O. MOODY

v.BENGE & JEWELL.

Supreme Court of Texas.

October, 1866.

The facts constituting the plaintiff's right to recover, and fixing the liability of the defendant to the plaintiff, must be averred directly and distinctly, and it is not sufficient that they may be supplied by inference from the allegations of the petition. Pas. Dig. art. 1427, note 537; 4 Tex. 452;22 Tex. 610;ante, 543; post, 798.

In a petition on a promissory note, an averment that the note was delivered to the plaintiff, or to some other person through whom he claims, is as necessary, to entitle the plaintiff to recover, as is the averment of the execution of the note by the defendant. Without an averment of such delivery no privity of contract is established between the parties, no liability is fixed on the maker of the note, and no right of recovery is shown in the plaintiff.

See the facts of this case for a petition on a promissory note held to be fatally defective in not sufficiently averring a delivery of the note to the plaintiffs. Whether the petition sufficiently avers the execution of the note by the defendant is also questioned, but not decided.

In this case judgment was rendered by default in the court below, and the error for which the judgment is reversed is not reached by the assignment of errors; but the error being patent on the face of the petition, and going to the foundation of the action, this court takes cognizance of it upon the submission of the case by the defendant in error on suggestion of delay. Pas. Dig. art. 1581, note 613.

ERROR from Tarrant. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.

The defendants in error, on the 18th of May, 1860, filed in the district court of Tarrant county the following petition against the plaintiffs in error: “Your petitioners, Ware, Benge, and H. C. Jewell, citizens of Johnson county, Texas, complain of Thomas O. Moody, a citizen of Tarrant county, Texas. Petitioners state that they are merchants and partners, trading and doing a mercantile business under the name and style of Benge & Jewell. Petitioners state that heretofore, to wit, during the year 1858 and part of the year 1859, the said Thomas O. Moody bought of them goods, wares, and merchandise to the amount of $291.04, for which, on a certain day, to wit, June 3, 1859, he gave his promissory note, as follows, in the words and figures below, by copy:

+------------------------------------+
                ¦$291.04.¦FORT WORTH, June   3, 1859.¦
                +------------------------------------+
                

One day after date, I promise to pay to the order of Benge & Jewell $291.04, value received, with ten per cent. interest.”

Petitioners state “that said note is due, that it is unpaid, and that the said Thomas O. Moody neglects and refuses to pay the same, to their great damage, to wit, one hundred dollars. Wherefore they sue, and file herewith their original note, marked exhibit A, and to be taken as a part of this petition,” concluding with prayer for citation, judgment, etc. The note itself, corresponding with that set out in the petition, was filed with the petition.

Citation being returned served, and no appearance being entered for the defendant, judgment by default was rendered against him at the ensuing term of the...