Malone v. Craig

22 Tex. 609

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Bell, J.

We are of opinion that the petitions in these two cases, do not state the cause of action of the plaintiffs, with sufficient precision and accuracy to entitle them to recover. In the case of Jennings v. Moss, 4 Tex. Rep. 452, it was said, that “to show a right of action, the plaintiff must allege title inhim- “ self, and some act of the defendant, creating a legal liability on “his part.” It was said further, that “the defendant’s liability “must be shown by averment.” The petitions before us aver that the defendants executed and delivered the notes sued on ; but it is not alleged to whom the notes were executed and delivered.

We have held, in cases decided at this term of the court, that where the petition alleged that the note sued on was executed and delivered, and also alleged that the plaintiff was the owner and holder of the note, the petition might be sustained, as suffi. ciently certain in its averments. This is showing great indulgence towards loose and negligent pleading, hnd we are not disposed to go any further, in excusing a careless practice, than we have already gone. A petition should state the plaintiff’s cause of action by distinct averments, and not leave it to the court to deduce the existence of one fact, from the statement of another.

The judgments will be reversed, and the causes remanded, to afford the plaintiffs an opportunity to amend their petitions.

Reversed and remanded.