McCauley v. Long & Co.

Citations

• 61 Tex. 74
• 1884 Tex. LEXIS 49

Syllabus

<p>1. Pleading.— In pleading, the allegations of a petition should be confined to the facts which constitute the cause of action, without going into special detail; and when the evidence relied on to support the action is set forth in the pleading, it should be stricken out on exception. See statement of case for an illustration.</p> <p>3. Same.— See statement of case for a cause of action in reference to which it was held proper, on exception, to strike out allegations of fraud and malice, and a claim for exemplary damages, alleged to have resulted from defendant’s having prohibited plaintiff from completing his contract. Following Houston & T. C. R’y Co. v. Shirley, 54 Tex., 127.</p> <p>3. Same.— A matter pleaded by way of defense, which constitutes no answer to the cause of action relied on by plaintiff, should be stricken out. See statement of case for an illustration of this rule.</p> <p>4. Evidence — Practice. — Evidence was ad mitted, in a suit brought by plaintiff for a breach of a written contract entered into between himself and the defendant, of the plaintiff’s verbal declarations in regard to the subject matter of the contract before its execution, with a view of attaching by parol new conditions to the written contract. This evidence was afterwards excluded by the court. Held:</p> <p>(1) The practice of permitting illegal evidence to go to the jury, and after-wards endeavoring by oral or written directions to divert their minds from its consideration, is one that should not be encouraged.</p> <p>(2) When illegal evidence, objected to, is from any cause heard by the jury, the court should by written instruction distinctly call their attention to it and expressly direct them to disregard it.</p> <p>•5. Practice — Pules op court.— Attention called to rule 36, which requires, when decisions are cited in a brief, that not only the volume and page of the report should be given, but also the style of the case relied on.</p>