Ramsay v. McCauley

• Decision Date: 31 December 1847
• Citation: 2 Tex. 189
• Parties: JOHN RAMSAY v. GEORGE J. MCCAULEY
• Court: Texas Supreme Court

2 Tex. 189

JOHN RAMSAY

v.GEORGE J. MCCAULEY

Supreme Court of Texas.

December Term, 1847.

Appeal from Washington County.

The rate of interest of a foreign country must be averred in the petition, and proven upon the trial, to authorize a verdict or judgment for the same.

The facts upon which the plaintiff's right to recover depend must be averred in the petition.

This was a suit brought in 1843 by the appellant against the appellee on two promissory notes which, from their face, appear to have been given in the state of South Carolina. They were made at “Camden,” and are payable at “the Branch Bank of the State of South Carolina.” Defendant pleaded the general issue, the statute of limitations, and payment. There was a verdict and judgment in favor of the plaintiff, for “principal, interest and protest.”

Webb, for appellant.

The notes appear to have been made in South Carolina. There is no proof in the record showing what was the rate of interest in that state, nor did the jury find what the rate was. As this was not done, the judgment below is erroneous. Huff v. Folger and Lamb, Dall. Dig. 530; Cooke v. Crawford, 1 Tex. p. 9.

McFarland, for appellee.

Mr. Justice WHEELER delivered the opinion of the court.

On the trial of this cause the plaintiff below, McCauley, offered in evidence a note, set out and described in his petition, signed “John Ramsey, by C. J. Shannon, attorney.” The defendant objected to its admissibility in evidence without proof of its execution. There being no denial under oath by the defendant Ramsay of his signature to the note, the court overruled the objection. There was judgment for the plaintiff, and the defendant appealed.

Was there error in the ruling of the court? The act of 1839, 4 Stat. p. 115, provides that when suit shall have been brought upon “any bond, bill, promissory note,” etc., “the execution of the instrument shall be regarded as proved,” unless the defendant or defendants “shall have made oath before the court in which the case is pending, that he or they never executed the said instrument nor authorized any person to execute it for him or them.”

There was no denial under oath to put the party upon proof of the execution of the note. The ruling of the judge upon this point was therefore correct.

But there is now brought to our notice another question to which the attention of the court below seems not to have been directed.

The notes sued on appear to have been made in the state of South Carolina. There is in the petition no averment as to what is the rate of interest, or that any interest is allowable, by the laws of that state, upon the cause of action sued on. Yet the verdict finds the gross sum of “eleven hundred and twenty dollars and fifty cents principal, interest and protest.” The question is, whether judgment can be rendered upon this verdict.

The cases of Huff v. Folger and Lamb, Dall. 530, decided by the late supreme court, and Cooke v. Crawford, 1 Tex. 9, a case in which I did not sit, decided by this court at the last term, are cited. In both those cases it appeared from the record that there had been no proof in the court below as to the rate of interest of the foreign country in which the notes sued on were executed. In this respect the present case differs materially from those cited. Here there is no statement of facts, and in such case we have repeatedly decided that we must presume that there was evidence sufficient to support the verdict, if under the pleadings such evidence would have been admissible.

The question then arises, could evidence of the rate...