Tinsley v. Penniman
| Decision Date | 18 January 1892 |
| Citation | 18 S.W. 718 |
| Parties | TINSLEY v. PENNIMAN. |
| Court | Texas Supreme Court |
Action by H. C. Penniman against Thomas Tinsley on a bill of exchange. Judgment for plaintiff, and defendant appeals. Reversed.
G. G. Wright, for appellant. Brown, Hall & Freeman and R. D. Coughanour, for appellee.
May 13, 1890, H. C. Penniman, appellee, brought this suit in the district court of Dallas county to recover of Thomas Tinsley, appellant, the sum of $2,270.90. Plaintiff, in stating his cause of action, alleges as follows: "That heretofore, to-wit, on the 15th day of May, 1888, plaintiff, at the special instance and request, and for the sole use and benefit, of defendant, made his certain bill of exchange, in writing, directed to the defendant, and thereby requested him to pay at sight, to the order of the Fourth National Bank, the sum of twenty-two hundred seventy and 90-100 dollars, and delivered said bill of exchange to said bank; that afterwards, to-wit, on the 21st day of May, 1888, the said bill of exchange was presented and shown to defendant for his acceptance and payment thereof, and the said defendant was then requested to accept and pay the same, but the said defendant, though often requested, did not then, nor at any time thereafter, accept or pay said bill of exchange, but wholly refused and still refuses so to do; that plaintiff has paid off and taken up said bill of exchange, together with the protest fee of one and 25-100 dollars thereon; that, by reason of the premises, defendant became liable and promised to pay plaintiff the sum of twenty-two hundred seventy-two and 15-100 dollars with lawful interest thereon from the said 15th day of May, 1888; that said defendant, though often requested, has never paid said sum of money, nor any part thereof; and that the same now remains due and wholly unpaid." The defendant's answer consisted of a general demurrer and a general denial.
The plaintiff in error complains, first, that the court erred in overruling his general demurrer to the plaintiff's petition. The averments of the petition are, in effect, that at the special instance and request, and for the exclusive benefit, of defendant, he drew a draft on the latter for the sum named; that the draft was dishonored; and that, for the exclusive benefit of defendant, plaintiff paid off and took up the bill of exchange. In our opinion, these facts were, if true, sufficient to beget the liability averred in the petition. We must, on general exceptions, indulge in every reasonable intendment arising upon the pleading criticised. Rule 17; 47 Tex. 619. The facts stated, it true, constitute a cause of action, and this is the only question to be considered on general exception. Williams v. Warnell, 28 Tex. 610. The general demurrer was properly overruled.
Two witnesses, H. C. Penniman and A. C. Ardrey, were permitted, over defendant's objection, to testify, — the former, that "he had authority in writing from defendant to draw on him for $2,270.90, the amount of the draft;" the latter, that the defendant, by letter, "authorized the plaintiff to draw on him for enough money to close the trade then pending between them." The ground of objection to this testimony was that it disclosed the fact that the authority referred to was in writing, which was the best evidence of its contents, and that the letter or letters referred to should be produced, or their absence accounted for, before parol evidence of their purport could be admitted. The objection should clearly have been sustained. The testimony was introduced, evidently, under the averment of the plaintiff's petition that the bill of exchange was drawn at the special instance and request, and hence by the authority, of the defendant. The error was therefore committed with reference to a material issue.
It is assigned as error that the court errred in overruling defendant's objection to the introduction in evidence of the following telegram and letters:
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Barton v. Pochyla
...testimony, if it had been given, would not constitute evidence in support of the judgment. Menard v. Sydnor, 29 Tex. 257; Tinsley v. Penniman, 83 Tex. 58, 18 S. W. 718; Bank v. Grain Co. (Tex. Civ. App.) 187 S. W. 489; Bank v. Harris (Tex. Civ. App.) 194 S. W. 961; Nalls v. McGrill (Tex. Ci......
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...and not by facts subsequently disclosed by the evidence. Mims v. Mitchell, 1 Tex. 443; Lemmon v. Hanley, 28 Tex. 219; Tinsley v. Penniman, 83 Tex. 54, 18 S. W. 718. If plaintiff desired to avail himself of the presumption of negligence arising from the derailment, no matter how caused, he s......
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