Robinson v. Brinson
| Decision Date | 01 January 1857 |
| Citation | 20 Tex. 438 |
| Parties | J. B. ROBINSON v. M. J. BRINSON AND ANOTHER. |
| Court | Texas Supreme Court |
It is no objection to an appeal bond, that it is conditioned to prosecute the appeal with effect or perform the judgment, sentence or decree of the supreme court, instead of and perform the judgment, etc., the word used in the statute.
A general denial, not under oath, in a suit on a note, imposes on the plaintiff the duty of producing and offering the note in evidence; or in case the note is lost, of proving its execution and contents; a demurrer to such plea cannot therefore be sustained.
A plea of failure of consideration of a note sued on, showed that the note was assigned by the payees after maturity; that it was given on a settlement, as the balance due the payees, who were millwrights, for services and labor by them performed in building a mill for defendant; that they had contracted to do the work in a good, faithful, substantial and workmanlike manner; that defendant was ignorant of the defects, being no judge of such work, at the time of settlement; that said work was not done in a faithful, substantial and workmanlike manner; and then proceeded to point out certain defects, and claimed $1000 damages; held to be good on demurrer; but, as the case would be remanded on another ground, said plea might be amended if necessary.
Appeal from Tarrant. Tried below before the Hon. Nat. M. Burford.
The facts are stated in the opinion.
J. J. Good, for appellant. It was error to sustain the demurrer to the general denial. Matossy v. Frosh, 9 Tex. 610;Able v. Chandler, 12 Id. 88. The plea of partial failure of consideration was good. Hart. Dig. art. 2521.
A. Y. Fowler, for appellees. I. First, upon motion to dismiss; the statute (Hart. Dig. art. 789) prescribes the condition of the appeal bond. This bond does not afford the appellees that security intended by the statute, and for this reason should be dismissed. 1 Tex. 99-101. II. A general denial is no answer to a suit upon a promissory note. 1 Chitty, Plead. 515. III. The plea of partial failure of consideration did not show sufficient grounds for the relief prayed. The appellant, at the settlement made with Mauck and Mann, after the mills, etc., were constructed and in operation, should have used due diligence to prevent fraud or imposition; if he then relied wholly upon the representations of his millwrights, when a man of ordinary discretion could have seen the defects mentioned in this plea, he did so at his own peril; he had full opportunity to investigate for himself and test the speed of the mills and the strength and capacity of its wheels. A court will not lend its aid to a party injured by his own laches or negligence. And in all other respects the allegations in this plea are too general and indefinite to afford any grounds of relief.
Appellees move to dismiss the appeal because of an alleged defect in the bond. The condition stipulates that “if the said Robertson shall prosecute his said suit with effect in the supreme court, or perform the judgment, sentence or decree of the supreme court, in case the decision of said court shall be against appellant.” The word “or” is used instead of the word “and,” as prescribed in the statute. It cannot be perceived that the meaning of the condition is thereby altered. Indeed, the appellant cannot “prosecute his appeal with effect,” and at the same time “perform the judgment, sentence or decree of the supreme court, in case the decision of the court shall be against him.” His obligation is alternative, to do one or the other. Therefore, although the statute uses the word “and,” in connecting the two alternative obligations, the meaning is more appropriately expressed by the word “or.” We think the bond is good and the motion must fail.
Appellees brought suit on the note, as assignees of Mauck and Mann, against the appellant. The appellant filed a general denial, and...
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