Southwestern Fire & Casualty Company v. Larue

367 S.W.2d 162

• Court: Texas Supreme Court
• Decided: April 17, 1963
• Docket: A-9114
• Status: Published

Opinions

GREENHILL, Justice.

Guy Larue executed a promissory note for $4,871.93 which was duly endorsed to the petitioner Insurance Company. The company brought suit on the note and for attorneys’ fees, alleging that the balance owed on the note was $2,747.97. Copies of the note and its reverse side were attached to the company’s petition. The back of the note showed the endorsement to the order of the company, but it showed no credits.

Larue’s unsworn answer had two points: (1) a special exception that the company’s petition failed to show when and how credits for payments had been applied or when demand was made [for payment] on the note; and (2) a general denial.

The company thereupon moved for summary judgment. No answer was made to that motion. Both sides appeared in the trial court, which entered judgment against Larue for $2,747.97 plus attorneys’ fees. The Court of Civil Appeals at Dallas reversed the judgment and remanded the cause to the trial court for a new trial. Its opinion is based on the failure of the trial court to sustain Larue’s special exception and because of the Court of Civil Appeals’ holding that there was an issue of fact: that the company’s petition itself created an ambiguity in the amount which was owed by Larue. Tex.Civ.App., 357 S.W.2d 821.

Larue does not deny the execution of the note. This he concedes in his brief. He does not question its endorsement to the company who sued upon it, or that it was based upon adequate consideration. Indeed all of these defenses must have been raised by sworn pleadings under Rule 93 of the Texas Rules of Civil Procedure. No point or argument is made by Larue on the question of demand for payment.

Similarly, Rule 94 provides that other affirmative defenses including that of payment, fraud, release, and the statute of limitations must be affirmatively pleaded. Under Rule 94 and Rule 95, payment is thus an affirmative defense on which the defendant has the burden of proof, which must be specially pleaded, and may not be shown under a general denial. Southwestern Investment Company v. Allen, 160 Tex. 258, 328 S.W.2d 866 (1959); Commercial Inv. Trust v. Smart, 123 Tex. 180, 67 S.W.2d 858, 69 S.W.2d 35 (1934).

Since the execution of the note and its endorsement were not in issue, and since the burden was upon Larue to establish payments on the note, the trial court did not err in overruling Larue’s special exception which would have required the company to show what payments had been made and when.

Nor do the allegations of the company’s petition create an ambiguity or an issue of fact. It alleged the face amount of the note and the amount which was due on the note. The company could recover no more than the amount sued for, and the burden was upon Larue to prove payment or release of any further sums.

There is one feature of the case which disturbs us, but it is not raised by point of error in this Court or in the Court of Civil Appeals. As the record reaches us, the original of the note was not attached to the pleadings or to an affidavit presented in support of the motion for summary judgment, or by deposition. But no point was made of this failure in the Court of Civil Appeals. Indeed, in Larue’s brief in the Court of Civil Appeals, it is stated under his point one as a fact that “The note is attached as an exhibit, rather informal in nature, for $4,871.93. * * *” This statement apparently was relied upon by the .Court of Civil Appeals. The second line of its opinion states that “The note itself was attached to plaintiff’s petition and made a part thereof for all purposes.” 357 S.W.2d at 822. The parties themselves were not disturbed by the failure of the company to attach the original of the note to its pleadings or to get it before the court by affidavit or deposition. Since no error was assigned thereon, we could not reverse for this failure. Assuming it to have been error, it was not of such character as to constitute fundamental error.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

CALVERT, C. J., and GRIFFIN, WALKER and HAMILTON, JJ., dissenting.