Persons v. Frost & Co.

25 Tex. 129

• Court: Texas Supreme Court
• Decided: October 15, 1860
• Status: Published

Opinion

Egberts, J.

—In this case, appellees bring a suit against appellant upon a note purporting to have been executed by 0. 0. Bond & Co., and charges that he, as one of the partners of said firm, executed the note sued on.

Appellant pleaded that he was at no time one of the partners of said firm of C. 0. Bond & Co., and denied the facts stated in the petition. This plea was not sworn to.

Hpon the trial, after the note had been read in evidence, the appellant offered to prove, in support of his plea, that he was not a partner of the firm of 0. C. Bond & Co., as charged in the petition; to which evidence the appellee objected, because the answer was not sworn to. The court sustained the objection, and excluded the evidence.

The answer, so far as it sought to contest the fact of partnership, was, in effect, a plea of non est factum, and might be treated as a nullity. The exact point was raised and so decided in the case of Drew v. Harrison, (12 Tex., 279,) which has been since followed upon a reargument of the question at Tyler, in 1859. (Davis v. Marshall, 25 Tex., 372; see O. & W. Dig., Arts. 427-28-29, and 466.)

Affirmed with damages.