Van Hook's v. Letchford & Co.

Citations

• 35 Tex. 598

Syllabus

<p>1. Plaintiffs sued V.’s executors on a note of a mercantile firm styled Moss & Co., and alleged that V. was a partner in that firm. The executors pleaded the general denial, and also a sworn special answer, in which they set forth that they were well acquainted with their testator in his lifetime, and often heard him speak of his business affairs, but never heard him say or intimate that he was a partner in the firm; that never, during his lifetime, had they heard any one else so state or intimate; but that a different person, one S., was generally understood to be the partner of Moss in the firm; and they prayed that this answer be taken, both as a plea of non eat factum and a denial of the partnership alleged by the plaintiffs. Held, that these negative averments are not sufficient to “cast suspicion” on the note sued upon, in compliance with the requirements of Article 1443, Paschal’s Digest, respecting pleas of non est factum filed by representatives of other persons.</p> <p>3. By the act of May 33, 1871, executors and administrators are made liable for damages at the rate of ten per cent, per month, when they fail or refuse to obey an order of court directing them to pay over to a creditor of the estate funds in their hands. Held, that a clear case of contumacy must be made out before this court will inflict these onerous damages.</p>