Moody v. Benge & Jewell

Citations

• 28 Tex. 545

Syllabus

<p>The facts constituting the plaintiff’s right to recover, and fixing the liability of the defendant to the plaintiff, must be averred directly and distinctly, and it is not sufficient that they may be supplied by inference from the allegations of the petition. (Paschal’s Dig., Art. 1427, Note 537.)</p> <p>In a petition on a promissory note, an averment that the note was delivered to the plaintiff, or to some other person through whom he claims, is as necessary, to entitle the plaintiff to recover, as is the averment of the execution of the note by the defendant. Without an averment of such delivery no privity of contract is established between the parties, no liability is fixed on the maker of the note, and no right of recovery is shown in the plaintiff.</p> <p>See the facts of this case for a petition on a promissory note held to be fatally defective in not sufficiently averring a delivery of the note to the plaintiffs. Whether the petition sufficiently avers the execution of the note by the defendant is also questioned, but not decided.</p> <p>In this case judgment was rendered by default in the court below, and the error for which the judgment is reversed is not reached by the assignment of errors; but the error being patent on the face-of the petition, and going to the foundation of the action, this court takes cognizance of it upon the submission of the case by the defendant in error on suggestion of delay. (Paschal’s Dig., Art. 1581, Note 613.)</p>