Lewis v. Alexander

Citations

• 51 Tex. 578

Syllabus

<p>1. Pleading.—A plaintiff in repleading filed an amended original petition, which by its terms was “ in lieu of and in substitution for the original and all the other amended petitions heretofore filed.” The paper filed failed to designate the date of filing of the various pleading for which it was substituted. The defendant filed general and special demurrers, and the comt, by a general judgment, sustained the demurrers : Held—</p> <p>1. That whatever might he the effect of a judgment sustaining a motion to strike out an amendment because it failed to designate with sufficient certainty the particular pleading sought to be amended, as required by rule 13 for the District Courts, such failure would not be sufficient, of itself, to sustain a general judgment upon several demurrers to pleading so amended.</p> <p>2. In all amendments under the new rules, the dates and descriptions of the abandoned pleadings should be given, and district judges should see that this is done.</p> <p>2. Pleading.—In a suit on a promissory note, it was alleged that “on the 2d of May, I860, (the date of the note,) B was the agent and employé of said firm of C & F, and as said agent, and in its name and for its use and benefit, and for value, made, executed, and delivered to plaintiff the said promissory note”: Held, A sufficient allegation that B had authority to bind the firm of 0 & P as agent.</p> <p>3. Pleading.—See opinion for pleading held to contain sufficient allegations of a contract affecting the rights of survivorship in a partnership.</p> <p>4. Pleading—Statute of frauds.—A contract which, by the statute of frauds, is required to be in writing, need not in pleading be averred to have been in writing. Whether it was or not is a matter of evidence, not of pleading.</p> <p>■5. Pleading—Survivorship.—See opinion for a plea alleging an agreement regarding survivorship between partners, held not to he subject to the objection that it was in conflict with the written articles of copart