Newcom v. Ford

222 S.W. 592, 1920 Tex. App. LEXIS 637

Opinion

LEVY, J.

(after stating the facts as above). The first assigned error does not afford, it is concluded, as ground for reversal of the judgment, and it should be overruled.

By the second assigned error it is insisted that the pleadings of the appellee were not sufficient to support a judgment for the defendant. The appellee filed a general denial and a special plea. It can be assumed, 'in passing upon the assignment of error, that the special plea is subject to a general demurrer, as- claimed by the appellant, and that there was- a general denial as a legal pleading of the defendant. The general denial would, it is thought, be a sufficient pleading in this case, as in all cases, to support a judgment for the defendant. A general denial operates to put in issue every material fact alleged in the plaintiff’s petition. The sufficiency of evidence to support the judgment rendered is another question, required to be raised' by an attack on the evidence and not the pleading. In the instant case, though, a material fact alleged in the petition and required to be proven by the appellant was that appellee was in possession of the note “through mistake,” and that appel-lee owed the note and had not paid it. The general denial allowed the appellee to explain his alleged possession of the note, that it was not “through mistake” as alleged. And looking to the evidence, which is not required by the assignment, it appears without contradiction that J. E. Ford, payee of the note, delivered the note' to Sam Ford, the maker, in about two weeks after its execution, with the expressed purpose and intention of making an immediate gift tnereof. The evidence only went to show an absolute and not a conditional gift. If J. E. Ford made an absolute gift of the note to Sam Ford, then Sam Ford would not be in possession of the note “through mistake,” but would be the owner thSreof, and would not be liable for payment of the same.

The judgment is affirmed.