Knight v. Booth

Citations

• 35 Tex. 10

Syllabus

<p>1. On a note for $1100, payable to G. or bearer, suit was brought by the holder against the maker, and the latter answered, that the note was not the property of the plaintiff, but belonged to a third person who owed defendant $160, and who had placed the note in the plaintiff’s hands without consideration, and for the fraudulent purpose of defeating defendant’s offset; and the defendant filed interrogatories to the plaintiff, requiring him to state whether the third person was not the owner of the note, and whether the offset was not just. The plaintiff omitted to answer the interrogatories, which were therefore taken as confessed, and read in evidence by the defendant. The court below (a jury being waived) rendered judgment that the plaintiff take nothing by his suit, and that defendant recover costs, etc. Held, that the judgment was erroneous ; the failure of the plaintiff to answer the interrogatories was not an admission that he was a fraudulent holder, and it should have been allowed no greater effect than to establish the offset, but not to nonsuit the plaintiff.</p> <p>2. After judgment as above stated, plaintiff’s attorney moved for a new trial, and supported the motion with his own affidavit, alleging that plaintiff was part owner of the note, and was agent for the other part owner, and offered to allow the offset claimed by the defendant. Held, that it was error to overrule the motion ; and this court not only reverses the judgment, but renders judgment in favor of the plaintiff for the amount of the note, less the offset.</p>