Martin v. Shumatte & Matthews

62 Tex. 188, 1884 Tex. LEXIS 205

• Court: Texas Supreme Court
• Decided: October 11, 1884
• Docket: Case No. 1715
• Status: Published

Opinion

West, Associate Justice.

We are of the opinion that, upon the case here made by the pleadings of the appellant, taking , them together, that the learned judge below, for several good reasons, committed no error in sustaining the special exceptions taken to the appellant’s cause of action in the manner and form in which it was presented to the court in her pleadings.

The instruments therein set forth were not negotiable promissory notes.

The authorities are very full indeed, and satisfactory, to the effect that though the written contract which is made the basis of the party’s cause of action may have on its face several of the ordinary features of a common promissory note, and may, in the body of the written instrument, use some of the conventional terms that would ordinarily confer upon it the character of negotiability, yet if, by some clause or stipulation in the body of the instrument, those elements which impart to it negotiability are limited and qualified, the negotiable character of the paper, as an ordinary promissory note, is destroyed.

In order to maintain an action on such an instrument, the nature, character and extent of the obligation incurred by the parties executing it must be fully and distinctly set forth. See Alves v. Hodgson, 7 Term R., 241; Manrow v. Durham, 3 Hill (N. Y.), 584; Brewster v. Silence, 4 Seld., 207; Parsons on Rotes and Bills, 1st vol., p. 42, ch. 3, sec. 5. See, also, Parsons on Notes and Bills, 2d vol., ch. 15, sec. 3, p. 534; also same author on Contracts, 2d vol., p. 525; 1 Daniel on Reg. Instruments, 59, 60, 79,149. See, also, Goldman v. Blum et al., 58 Tex., 630. See, also, in this connection, Salinas v. Wright, 11 Tex., 572; Hutchins v. Wade, 20 Tex., 7.

[Opinion delivered October 11, 1884.]

Many other authorities have been examined and could be referred to, but the above are deemed to be sufficient.

The statement of the nature and character of the instrument made the basis of the appellant’s cause of action was not in the pleadings set forth with sufficient certainty. Hnder the circumstances the special exceptions of appellees were properly sustained. The judgment of the district court, dismissing the case, is affirmed.

Affirmed.