Towner v. Sayre

• Decision Date: 31 December 1849
• Citation: 4 Tex. 28
• Parties: TOWNER v. SAYRE.
• Court: Texas Supreme Court

4 Tex. 28

TOWNER

v.SAYRE.

Supreme Court of Texas.

December Term, 1849.

It is too late to except to the petition after taking issue on it.

Where the defendant had given the plaintiff an order on a third person for twenty-five head of cattle, and the order had been dishonored: Held, That in an action on the order for damages it was not necessary to aver the value of the cattle separately, but that it was sufficient to “pray that the defendant pay him the amount he is damaged, which he estimates at one hundred and fifty dollars.”

The distinction of actions, as known to the common-law practice, has never been acknowledged in our courts.

It seems that defendant may, after the plaintiff has introduced all his evidence, demur to the same. (Note 6.)

It is not necessary to set out the instrument sued on in hæc verba; it is sufficient to state the substance and legal effect of it.

A defendant cannot be permitted to give in evidence, under a general denial, any facts which confess and avoid the action.

Appeal from Guadalupe.

Neill, for appellant.

Hancock, for appellee.

LIPSCOMB, J.

Suit was brought by Sayre, the appellee, against Towner, the appellant, on an order drawn by the latter in favor of the former, or to his order, on one Smith, for the delivery of twenty-five head of average stock cattle.

The petition sets out that the order had been given to him for a valuable consideration; that he had placed the order in the hands of one Anderson to be presented for payment; that Smith refused to deliver the cattle; that plaintiff afterwards had the order presented to said Smith, who finally protested the same. He refers to the order, and prays that it should be made a part of his petition. He does not, in the body of his petition, assume to set the order out in hæc verba, and does not designate the cattle to be average stock cattle, but only describes the order as for stock cattle. A copy of the order sued on seems to be appended to the petition. “He prays that the defendant, Towner, be condemned to pay him the amount he is damaged, which he estimates at one hundred and fifty dollars and costs,” &c.

The cause was continued the first term, on the affidavit of the defendant, before answer filed. At the next term of the court the defendant filed his answer, in the first place, that he did not promise, undertake, or assume, and of this puts himself upon the country; and for further answer, that he is not guilty as charged, and of this he puts himself upon the country.

The defendant then proceeds to except to the plaintiff's petition--

First. That it does not pray for any specific judgment, except for damages, without alleging that damage has been committed.

Second. Because the action is not in debt or damages.

These exceptions were overruled by the court, and it is not conceived that there was error in so ruling.

The exceptions ought not to have been sustained, because in point of time it was too late to except to the petition after taking issue on it; and again, neither of them could have been sustained if taken before issue, because the petition does pray a specific judgment. “He prays that the defendant, Towner, be condemned to pay him the amount he is damaged, which he estimates at one hundred and fifty dollars and costs.” This is not as formal as we usually find, but it is sufficiently clear what he seeks as well as the amount. It would have been more in conformity with established rules of practice had he distinctly stated the value of the cattle and prayed judgment for the amount; but it is believed to be substantially good as stated. The petition must be taken as a whole, and when we so view it the cause of action and the amount claimed are not at all doubtful. To the second exception we need only answer that the distinction of actions, as known to the common-law practice, has...