Wiseman v. Collins

242 S.W. 1091, 1922 Tex. App. LEXIS 1085

• Court: Court of Appeals of Texas
• Decided: June 14, 1922
• Docket: No. 1999.
• Status: Published

Opinion

BOYCE, J.

A plea of failure of consideration should, as against a special exception, state the facts specifically. Clifton v. Brundage, 25 Tex. 331; Key v. Hickman (Tex. Civ. App.) 149 S. W. 275; Grimes v. Bricson, 94 Minn. 461, 103 N. W. 334; 4 Enc. of Pldg. & Prac. 950. A plea of want of original consideration in general terms might be sufficient because of the fact that, the very nature of the plea negatives the existence of anything more specific. Grimes v. Ericson, ■94 Minn. 461, 103 N. W. 334. But the pleading of a failure of consideration in effect admits an original consideration, and the defendant could not combine the two allegations in one plea and sustain the pleading against a special exception on account of generality and uncertainty. Appellant’s counsel, we think, misunderstands the meaning of the reference he cites to Townes on Pleading. Judge Townes makes it clear that the plea of want or failure of consideration is a plea of confession and avoidance and that the facts must be specifically pleaded. Townes on Pleading, pp. 540 and 542. Affirmed.