Birge v. Wanhop

21 Tex. 478

Opinion

Hemphill, Ch. J.

There was error in sustaining the plaintiffs’ demurrer to the defendant’s plea of partial failure of consideration from the death of the negro by accidental drowning, without fault on the part of defendant, before the end of the year for which he was hired.

The plea was a good defence. (Townsend v. Hill, 18 Tex. R. 422.) It was defective in not stating with some precision the time of the death, that the plaintiff might be apprized of the exact amount of the abatement claimed. But this defect should have been reached by sepeial demurrer. Besides it is obvious that this was not the ground of objection below, nor the ground upon which the Court ruled out the plea. The death of the slave before the expiration of the. time of hiring was evidently regarded as no defence. Bor the error in sustaining the demurrer, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.