Wells's Adm'x v. Fairbank

• Decision Date: 01 January 1851
• Citation: 5 Tex. 582
• Parties: WELLS'S ADM'X v. FAIRBANK.
• Court: Texas Supreme Court

5 Tex. 582

WELLS'S ADM'X

v.FAIRBANK.

Supreme Court of Texas.

1851.

A man's own acts and declarations, when voluntary, are always evidence against him.

Any fact which affords a fair presumption or inference as to the question in dispute and can be established by competent means may be submitted to the jury.

The rule that the pleader must state the facts on which he intends to rely as constituting his cause of action or ground of defense is universal in our system of pleading with the single exception of the plea of “not guilty” in the action of trespass to try title. But although a statement of facts is indispensable, it is not necessary to state such circumstances as constitute merely the evidence of those facts. (Note 102.)

If the fact be pleaded, the evidence of such fact may be submitted to the jury, although not specially developed in the pleading by a detail of all the attendant circumstances.

If a party desire to take advanage of any defectiveness in the form of manner of stating a fact in the pleadings of the opposite party, he should do so by exceptions. (Note 103.)

Where the answer contained a plea of payment, alleging in general terms that the debt had been “paid off and discharged,” and at the trial the defendant offered to read in evidence the deposition of a witness to the effect that both parties to the contract, the plaintiff and the defendant's intestate, had stated to the witness, at a time subsequent to that of the alleged indebtedness, that they had had a settlement, and that Wells, the intestate, owed the plaintiff fifty dollars: Held, That the deposition should have been received in evidence; that the act concerning discounts and set-offs (Acts of 1840, p. 62, sec. 2) did not apply to such a case; and that it is applicable only where it is proposed to prove “items” of payment. (Note 104.)

Appeal from Harris. This suit was brought by the appellee against the appellant as administratrix of James Wells, deceased, upon an account for work and labor alleged to have been done by the plaintiff for the defendant's intestate.

The answer embraced a plea of payment, alleging in general terms that the debt had been “paid off and discharged.”

The defendant offered to read in evidence the deposition of a witness to the effect that both the parties to the contract of hiring, the plaintiff and the defendant's intestate, had stated to the witness, at a time subsequent to that of the alleged indebtedness and in reference to the alleged ground of indebtedness, that they had had a settlement, and that Wells, the intestate, owed the plaintiff fifty dollars. This evidence was objected to by the plaintiff and excluded by the court. There was a verdict and judgment for the plaintiff for one hundred and nineteen dollars, a motion for a new trial overruled, and the defendant appealed.

J. W. Henderson, for appellant. The defendant had a right under his pleadings to offer the deposition of John Derrick in evidence as rebutting testimony to show by the plaintiff's own declarations that the intestate of defendant was only indebted in the sum of fifty dollars.

The court should have granted a new trial because he erred in ruling out that testimony which would have changed the verdict of the jury.

WHEELER, J.

The only question presented for our consideration is as to the propriety of the ruling of the court in excluding the evidence offered to prove a settlement of the alleged indebtedness, and the admission of the plaintiff that the defendant's intestate owed him but fifty dollars.

It does not appear upon what ground the evidence was excluded. But it must have been upon one of two grounds: either, 1st, that it was inadmissible in itself as evidence of payment, or, 2d, that the fact of payment was not so pleaded as to lay the foundation for the introduction of any evidence under the plea.

It is an elementary principle that a man's own acts, conduct, and declarations, when voluntary, are always evidence against him. “It is (says Mr. Starkie) a most general and extensive rule that all a man's acts and declarations shall be admitted in evidence whenever they afford any presumption against him, for it is to be presumed that he acted and spoke consistently with his knowledge of the truth.” (2 Stark. Ev., 17.)

Great latitude is justly allowed by the law to the reception of indirect or circumstantial evidence, the aid of which is constantly required to remedy the want of direct evidence. In the absence of direct evidence, that which conduces in any degree to establish a material fact alleged is in general admissible. Any fact may be submitted to a jury, provided it can be established by competent means which afford any fair presumption or inference as to the question in dispute. (1 Stark. Ev., 57, 58.)

The evidence we are considering was offered for the purpose of proving...