Wood v. Evans

Texas Supreme Court
Wood v. Evans, 43 Tex. 175 (Tex. 1875)
Moore

Wood v. Evans

Opinion of the Court

Moore, Associate Justice.

The demurrer to the petition should have been sustained. It is alleged in the petition that the defendants had failed to pay the note described therein, except the amount credited on the note, and that *182there was still a large amount due thereon. But neither the amount of credits on the note nor the balance claimed to be due and unpaid is averred. The mere statement of some indefinite and uncertain amount being due the plaintiff, for which he asks judgment, is not such a full and clear statement of his cause of action and prayer for relief which the facts authorize him to ask of the court as will warrant a judgment on his behalf. The cause of action and its breach should be distinctly averred and set forth. The facts sufficient to warrant a judgment should be directly and clearly alleged. It is not sufficient that they may, by argument and inference, be decided as conclusions from the facts which are averred.

It sufficiently appears from the petition that the suit was brought by defendant in error in his representative capacity as surviving administrator, and that the note upon which there was an unpaid balance claimed to be due was assets belonging to the estate of his intestate.

But for the reason previously stated the judgment must be reversed and the cause remanded.

Reversed and remanded.

Reference

Full Case Name
F. P. Wood v. J. C. Evans, Administrator
Cited By
6 cases
Status
Published
Syllabus
1. Pleading certainty.—A petition by the holder of a promissory note alleging the failure to pay the note, except the amount credited thereon, which amount is not stated, is insufficient. 2. Same.—The cause of action and the breach should be distinctly averred; the facts sufficient to warrant a judgment should be directly and distinctly set forth. 3. Surviving administrator.-—A surviving administrator can maintain suit upon a promissory note executed to him and another administrator jointly, and who has died, upon alleging the execution of the note to them jointly as administrators and the decease of the administrator not joined as plaintiff.