Salinas v. Wright
| Decision Date | 01 January 1854 |
| Citation | 11 Tex. 572 |
| Parties | SALINAS v. WRIGHT. |
| Court | Texas Supreme Court |
Where the petition is founded on a promissory note or other promise in writing to pay money, and does not state the time of payment, it is equivalent to an express allegation that payment was to be made on demand; and a promise to pay at a future day or on a contingency would not be admissible in evidence, because of the variance.
A promise in writing to pay a certain sum of money to another, “so soon as circumstances will permit,” is not a promissory note.
Where the defendant had acknowledged in writing, that he was indebted to the plaintiff in a certain amount, which he promised to pay as soon as circumstances would permit, it was held that the plaintiff could not recover, on that instrument alone, without proof of the ability of the defendant to pay.
Where the petition alleged a promissory note, and the plaintiff, instead thereof, proved a promise to pay as soon as circumstances would permit, and did not prove the defendant's ability to pay, it was held that the foundation of the action so manifestly failed, that the objection could be taken, although it was not assigned as error.
A mere misnomer of an instrument is not material, where the instrument or a copy of it is made a part of the pleading, or where it is otherwise properly described.
A motion “to arrest and set aside a judgment,” will be treated as a motion for a new trial, where it assigns such grounds only as are proper in a motion for a new trial, and as are not proper in a motion in arrest of judgment.
To authorize a revision of a judgment, on the merits, a formal statement of facts is not essential, where all the evidence legally and conclusively appears by the record; and it may so appear, as in this case, by a bill of exceptions.
Error from Cameron. The defendant in error brought suit against the plaintiff in error, averring that the latter was indebted to him in the sum of one hundred and forty-eight dollars; for that, “on the sixth day of September, 1850, the said Miguel Salinas executed his certain promissory note, wherein and whereby he promised to pay the petitioner the said sum of one hundred and forty-eight dollars for value received; all of which will more fully appear from the said promissory note, herewith filed and made a part of this petition, for further description and greater certainty: and that the said amount is now due and unpaid to your petitioner.”
The defendant excepted; and objected to the petition that, although it professed to make the note a part thereof, yet the same was not filed, nor did a copy of it accompany the copy of the petition served on him. The plaintiff thereupon amended his petition by striking out the amendment, by which it was proposed to make the note a part of the petition. There was a general dedial. The plaintiff offered in evidence a note in writing, in the Spanish language, as follows:
Por el presente documento conste ser cierto que le soy dendor a Dn. Juan Rait la cantidad de ciento cuarenta y ocho pesos los mismos que me comprometo a satisfacerle tan luego como las circumstancias me lo permitan. Y paro su debida constancia le estiendo el presente hoy dia de la fecha, siendo testigo Dn. Fermin Benavides. Brownsville, Sept. 6 de 1850.
+------------------------------------------+
¦Testigo. Fermin Benavides,¦MIGUEL SALINAS.¦
+------------------------------------------+
Of which the following is a translation: “By this instrument let it be known that I am indebted to John Wright, in the sum of one hundred and forty-eight dollars; which sum I bind myself to pay, so soon as circumstances will permi?? me. And as proof I give the present writing, this day and date; Fermin Bena vides being witness to the same. Brownsville, Sept. 6th, 1850.
MIGUEL SALINAS.
Witness, Fermin Benavides.”
To the admission of which, in evidence, the defendant objected on the ground of variance in the name of the payee, and in that the petition described a promissory note, and that offered in evidence contained a contingent promise, which was not set out, or described in the petition. The Court overruled the objection, and admitted the note in evidence. An interpreter was admitted to testify that “Juan” in Spanish meant John in English, and that the word “Rait” in Spanish was pronounced as Wright in English, which with the note, it is stated in the bill of exceptions, was all the evidence in the case. The jury found for the plaintiff; and the defendant moved “to arrest the judgment and set aside the verdict,” because contrary to law and the evidence, and because of the variance between the note described in the petition and that admitted in evidence. The Court overruled the motion, and gave judgment for the plaintiff; and the defendant brought a writ of error.
The errors assigned were the following:
“2d. The Court erred in overruling the objection that the name, as contained in said document, should be proved to be the identical name and person of the plaintiff in this suit, before admitting it in evidence.
3d. The Court erred in not directing a translation of said document,” etc.
W. Alexander, for plaintiff in error. That the instrument is not a promissory note will appear by reference to Story on Promissory Notes, Section 22.
No consideration appears to have been alleged by Wright in his petition for the execution of the promissory note sued on; and no consideration is alleged for the execution of the instrument offered in evidence. (See Foster & Jones v. Holliday, decided at this Term.)
No allegation appears in the petition, showing that the note sued on was due at any specified time. (Story on Notes, Sec. 13.)
The instrument offered in evidence is conditional. It bears date on September 6th, 1850, and is payable, “so soon as circumstances will permit me.” (Como las circumstancias me lo permitan.) If this instrument was the one intended to be sued on, this condition was material to be inserted in the description of it, in the petition. Besides, it should have been also averred that the circumstances of Salinas permitted its payment at some specified time prior to (or at) the filing of the petition.
Allen & Hale, for defendant in error.
The plaintiff declared as upon a promissory note, which did not specify any day of payment. The legal import of such a note is that it is...
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In re J.F.C.
...and foundation of action will be considered though unassigned as error); Rankert v. Glow, 16 Tex. 9, 13 (1856) (same); Salinas v. Wright, 11 Tex. 572, 577 (1854) (same); Wetmore v. Woodhouse, 10 Tex. 33, 34 (1853) Although these early cases considered fundamental error to be a principle of ......
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City of San Antonio v. Guido Bros. Const. Co.
...Agreements, their pleading should have included an appropriate allegation that the conditions precedent had occurred. Salinas v. Wright, 11 Tex. 572, 576 (1854); 71 C.J.S. Pleading § 80, p. 193; Wright v. Farmers' Nat. Bank, 31 Tex.Civ.App. 406, 72 S.W. 103, 104 (1903, no writ). Cf. Burling......
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Dille v. Longwell
... ... Holmes , 65 Me. 195, the note was to be paid when the ... maker sold his place, where he was then living. In Sears ... v. Wright , 24 Me. 278, and in Goodloe v ... Taylor , 3 Hawks 458, the qualifying words made payment ... depend, respectively, upon the time when the maker ... until the condition actually happens. See Nelson v. Von ... Bonnhorst , 29 Pa. 352; and Salinas v. Wright , ... 11 Tex. 572. But we think it has been shown that the great ... weight of authority goes at least so far as to allow a ... recovery ... ...
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American Exchange Nat. Bank v. Keeley
...security against the defeat of the statute, by requiring authentic written evidence of the alleged promise or acknowledgment." Salinas v. Wright, 11 Tex. 572, from which we "Where the defendant had acknowledged in writing, that he was indebted to the plaintiff in a certain amount, which he ......