Vance v. Claiborne

39 Tex. 398

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Ogden, P. J.

This suit was brought by appellant upon a certain promissory note, executed by appellee in 1861. Upon the note were several credits indorsed, and were admitted by the plaintiff as partial payments. The defendant below attempted to plead other payments and offsets, which, if well pleaded and proven, would have greatly reduced the amount due on the note. But some of those offsets were too indefinitely and vaguely pleaded to authorize the admission of any proof in their support. We, therefore, are of the opinion that under the pleadings the court erred in overruling the objection to the introduction of any proof as to the Guy note and the claim for commissions. These items were so indefinitely pleaded it is impossible to detemine whether the pleader intended to set them out as part payment of the note or as part payment of the original indebtedness before the execution of the note. And we here remark that the evidence as to these 'two .items, though erroneously admitted under the defective pleading, has failed to throw much light en-tile facts of the case and has left them in great doubt and; uncertainty, and in consequence it would not be a matter-of surprise if the jury were confused and misled in their verdict.

But admitting that every item which was attempted to-be set up as an offset or payment was well pleaded and that the proof fully sustained the plea,' and giving credit-for all payments admitted by the plaintiff below, and all claimed by'the defendant, still there is due and unpaid on the note several hundred dollars, while the verdict and judgment is for the defendant.

This judgment under the pleadings and proof cannot possibly be correct, and the court erred in overruling the-motion for a new trial. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.