Whitaker v. Record

25 Tex. 382

Opinion

Wheeler, C. J.

—The petition is manifestly insufficient to support a recovery. It contains no averment of any breach of contract on the part of the defendants. It is not enough that the plaintiff is the holder of a note which the defendants are liable to pay; it must appear by averment that they have violated their contract, by refusing to make payment of the note agreeably to their undertaking,' in order that the petition may show a cause of action. It is essential, to constitute the statement of a cause of action, that it appear, by averment, not only that the plaintiff has a right, but that the defendant has done or omitted some act or duty in derogation of that right.

Moreover, there is no sufficient service upon any of-the defendants.

Judgment reversed and cause remanded.