Whitlock v. Castro
| Decision Date | 01 January 1858 |
| Citation | 22 Tex. 108 |
| Parties | JOHN W. WHITLOCK AND ANOTHER v. HENRY CASTRO. |
| Court | Texas Supreme Court |
Where the petition showed that two of the notes sued on were made in ““New York,” and payable “at the office of the Commercial and Agricultural Bank of Texas, in New Orleans” (in 1851 and 1852, before the passage of an act further regulating proceedings in the district court, Acts 7th Legislature), without an averment, in connection with them, explaining the localities of “New York” or “New Orleans,” the court cannot judicially know that they were places beyond the limits of the state.
A note payable at a particular place, bears interest according to the rate there payable by law.
If it do not appear from the petition, that the place of payment specified in the note was beyond the limits of the state of Texas, it will be presumed to have been within it, and interest on the same will be computed according to the rate established by our laws.
The commencement of a petition as follows, “The petition of John W. Whitlock & Co., a mercantile firm of the state and city of New York, composed of the following named persons, to wit, John W. Whitlock and James Kellogg, most respectfully represents,” etc., is not sufficient to constitute an averment, that the office of said firm was in the said city and state; and is a recital evidently not intended, by the pleader, to indicate where the notes described in the petition were executed.
In ascertaining whether or not, the averment of a fact necessary to support or qualify a cause of action, has been made, the court is not required to collate detached parts of the recitals in it, and construe them in a connection, and for a purpose, not intended by the pleader, in order to supply, by the aid of inferences, a distinct and material averment, which has been clearly omitted in its proper place. 30 Tex. 17.
The statute requires, that the plaintiff shall set forth, in addition to the names and residence of the parties, if known, “a full and clear statement of the cause of action, and such other allegations pertinent to the cause, as he may deem necessary to the suit.” If the plaintiff sought to recover New York interest, an allegation, pertinent to the cause, and necessary to such object, was, that the notes were made there, and that the rate of interest in that state was seven per cent. (as admitted in the court below).
There being no such allegation in the petition, and there being no allegation as to the locality of New Orleans, or the rate of interest there, the court should not have taken judicial notice, that the notes were payable out of the limits of the state of Texas; which it must have done, to have given the charge to the jury, that they should allow the plaintiffs no interest on the notes.
APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine. Suit by the appellant and James Kellogg, mercantile partners, under the firm and style of John W. Whitlock & Co., against the appellee, on three several promissory notes of the following tenor:
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¦$1,770.97.¦New York, April 5th, 1851.¦
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Eight months after date, I promise to pay to the order of Jno. W. Whitlock & Co., with current rate of exchange on New York, seventeen hundred and seventy 97-100 dollars, at office of Commercial and Agricultural Bank of Texas, in New Orleans, value received.
H. CASTRO.
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¦$1,238.13.¦New York, April 5th, 1851.¦
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Nine months after date, I promise to pay to the order of Jno. W. Whitlock & Co., with current rate of exchange on New York, twelve hundred and thirty-eight 13-100 dollars, at office of Commercial and Agricultural Bank of Texas, in New Orleans, value received.
H. CASTRO.
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¦$86.02.¦New York, April 5th, 1851.¦
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Eight months after date, I promise to pay to the order of Messrs. Jno. W. Whitlock & Co., eighty-six 2-100 dollars, at their office, value received.
H. CASTRO.
On the trial of the case, it was admitted as a fact, by counsel for the defendant, that the rate of New York interest was seven per cent. The plaintiff read the notes sued on, in evidence. The defendant had brought a suit against the plaintiff, which was consolidated with this suit, claiming damages of the plaintiff for wrongfully suing out the attachment issued and levied by the plaintiff in this action, on the goods of the defendant. The voluminous testimony on that branch of the case, and the charges given by the court on points involved in that issue, need not be stated, as they were not essential under the view of the case taken by the supreme court.
The court charged the jury, that “In estimating the amount due on the notes, you will allow the plaintiffs no interest; proof of a foreign rate of interest will not authorize a recovery of such interest, in the absence of a distinct allegation in the petition, setting forth such foreign rate of interest.”
The plaintiffs' counsel asked the court to charge the jury, that “The rate of interest having been allowed at seven per cent., and the defendants having admitted that rate, plaintiffs are entitled to recover it;” which charge was refused by the court.
Verdict of the jury. “We the jury find for defendant Castro, one hundred dollars damages, over and above the amount of the three notes.” Judgment, that said notes be paid and satisfied, and that defendant recover of plaintiff the further sum of one hundred dollars damages, and costs of suit.
The appellant assigned as error, the giving of the charge aforesaid by the...
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