Ferguson v. American Bank & Trust Co.

13 S.W.2d 459

• Court: Court of Appeals of Texas
• Decided: January 17, 1929
• Docket: No. 3622. [fn*]
• Status: Published

Opinion

WILLSON, C. J.

(after stating tbe facts as above).

Contentions presented by tbe assignments are that tbe trial court erred ' (1) in overruling tbe motion to change tbe venue of tbe cause, on tbe ground of prejudice against appellant in Grayson county; ■ (2) in' refusing appellant’s request that a ■ special issue specified be submitted to tbe jury; (3) in admitting specified testimony over appellant’s objection; and (4) in not ■ granting appellant a new trial because of al- . leged misconduct of counsel for appellees i in arguing tbe case to tbe jury. In tbe view we take of tbe record tbe contentions should ..be overruled, and tbe judgment affirmed, because (if for no other reason) of tbe admission of appellant at the trial set out in tbe statement above. It is settled that such an admission “admits [quoting from tbe opinion . of tbe Commission of Appeals in Smith v. Frost, 254 S. W. 926] every fact alleged in tbe plaintiffs’ petition, tbe proof of which is necessary to their recovering in tbe first in- . stance, and is an abandonment of all defensive matter set up in defendant’s answer, except that in tbe nature of confession and avoidance.” And see Ferguson-McKinney Dry Goods Co. v. Bank, 31 Tex. Civ. App. 238, 71 S. W. 604; Meade v. Logan (Tex. Civ. App.) 110 S. W. 189; Haile v. Coker (Tex. Civ. App.) 267 S. W. 1010; Rector v. Evans (Tex. Com. App.) 288 S. W. 826; Finger v. Whitworth (Tex. Civ. App.) 294 S. W. 285; Federal Life Ins. Co. v. Wilkes (Tex. Civ. App.) 218 S. W. 591. The plea in the answer that tbe notes sued on were without a consideration was not a plea in confession and avoidance, and by tbe admission referred to appellant was in tbe attitude of having abandoned it. Tbe only matter in the nature of confession and avoidance set up in tbe answer was that tbe consideration for the notes had failed. There was evidence tending to show that tbe notes may have been without a consideration, but none tending in tbe least to show that if they ever bad a consideration it failed. Appellant having admitted appel-lees’ cause of action was a good one, and having failed to adduce any evidence in support of bis plea in confession and avoidance, tbe judgment appealed from was tbe only one which properly could have been rendered by tbe court. Dashiel v. Lott (Tex. Com. App.) 243 S. W. 1072.

Therefore tbe judgment is affirmed.