McCamant v. Batsell

Citations

• 59 Tex. 363
• 1883 Tex. LEXIS 172

Syllabus

<p>1. Pleading.— An answer in a suit to recover on a promissory note set up that the note was based on “ a gambling transaction.” IIeld, that in the absence ot' specific averments stating what the real character of the transaction was, or that plaintiff’s connection therewith was such as to make it unlawful between the parties, an ex-ceplion to that portion of the answer was properly sustained.</p> <p>2. Pleading.— Where a suit is based upon the former suretyship of plaintiff for the defendant, and the payment, by plaintiff, of defendant’s debt, the cause of action cannot be stated as an “account” or “open account” within the meaning- of article 2266, R. S., which the plaintiff may establish by his ex parte affidavit. Any other construction of the statute would make the ex parte afifi lavit perform the office of establishing, not only that plaintiff had paid the amount of money specified, but that there was a contract between defendant and himself which made him liable as surety to pay it, in the face of the fact that the note itself would afford better evidence that the suretyship existed.</p> <p>3. Practice.— The statute (R. S., art. 1265), which provides among other things that an answer setting up “that an account which is the foundation of the plaintiff’s action, and supported by an affidavit, is not just,” must be denied by an answer so verified, and that “in such case the answer shall set forth the items and particulars which are unjust,” regulates the manner of pleading, but does not relieve a plaintiff from the necessity of proving his case by competent evidence.</p> <p>4. Statutes construed.— Article 2266, R. S., which makes an account supported by affidavit prima facie evidence of its correctness in certain cases, prescribes a rule of evidence applicable only to open accounts.</p> <p>5. Same. — The word account, as used in that statute, has its popular, rather than a technical, signification, and applies to transactions between persons, in which, by sale