Hillebrant v. Booth

7 Tex. 499

• Court: Texas Supreme Court
• Decided: July 1, 1852
• Status: Published

Opinion

Wheeler, J.

The statute which authorizes the defendant, in his answer, to plead “as many several matters” as lie nmy think necessary for his defense, while it gives the rigid, at the same time and in the same answer, to interpose two ov more distinct and independent defenses by separate and distinct, and, it may be, inconsistent pleas, does not dispense with the necessity of pleading the facts which constitute eacli ground of defense by consistent averments. The answer may embrace a general denial and a plea in confession and ¿avoidance, and, in so far. it may embrace inconsistent defenses. But eacl) plea in confession and avoidance must constitute, in itself, a good defense to the ■action; and, of consequence, must be consistent in its averments.

It is an elementary and primary requisite of a good plea that it be capable of iproofTaFcl, conseq neñÍ3NTRa^t^lawew^TIÍe]pfeadHrjniistj;taie'lth.e..factsnn. -WlTfcrilie relies, accordi^^ThTrtMjtlLoLthe case, or his pleading will notavajl jiinTon the triídr3E2hr-mlíl-^^0JlE5l;^ns^'1^r->-^fi^<Tll¡i'l,í&-Ell-tlMil!ii!Íl'.Y,_ ñfVTCTyjSéatlingi. Hence, if it judicially appear to the conrE''irQm..tb-e ttefojffl"' _jgnt’s own, admissions oQl^g^nitguP.tiá^i^w^^t-H — is^nrnt-iHHvit-ndlLb.e^o^ nq^validity. If the ayei-injiiitsIiRjineansistent. and thus.contradict and falsify. _íttéffi§iIveS£niEéy cannotfBe suscepíibLejiLpKQfil. Á plea setting up as a defense ^ffflmñ^IcoñBdéraEioñlwlTieli alleges that such failure consisted in the existence and non-existence of a given fact, presents on its face an absurdity, and, of consequence, must be invalid.^

Such is the character of the plea of failure of consideration in this ease. It •alleges that the consideration of the note has failed, for that it was given in the purchase of certain notes, accounts, and land papers, the property of the plaintiff’s intestate, and which were sold by her at public sale; and that there was no sale or delivery by the plaintiff of anything whatever, and that the consideration of the note was an entirely different'one from that before alleged. This plea is manifestly untrue upon its face, and was rightly rejected by the •court. The judgment is affirmed.

Judgment affirmed.