40 S.W. 1036 | Tex. App. | 1897
The judgment of the lower court must be reversed.
The suit was brought by R.B. Stephens against appellant, E.J. Ashcroft, for balance due on two promissory notes, each for $608.33, and to foreclose vendor's lien on 157 acres of land, for part payment of the purchase of which the notes were given. The notes were executed by E.J. Ashcroft to R.B. and P.H. Stephens, and the deed was executed by them and their wives to Ashcroft, dated November 29, 1886, containing a general warranty of title. The land was sold by the acre at $15 per acre. Other persons holding by superior title were in possession of 14 1/2 or 16 1/2 acres of the 157 acres of land conveyed by the Stephenses to Ashcroft, which fact was unknown to him at the time of the purchase, but thereafter, having taken possession and placed improvements on the land, he had it surveyed, and discovered that others were in possession of a part of the land as stated. He immediately claimed indemnity for the shortage, but it was not allowed. The notes were transferred by P.H. to R.B. Stephens, who has sued for all the balance due, admitting certain payments thereon. Ashcroft paid $500 cash when he bought the land, and afterwards paid on the notes, December 5, 1891, $125; January 10, 1894, $34.04; November 13, 1894, $490, all on the note first maturing; and $100 December 5, 1891, on the note last maturing. The Stephenses after being informed by Ashcroft of the deficit in the number of acres of the land, promised to adjust it, but failed to do so.
Defendant pleaded the foregoing facts, and claimed a failure of *344 consideration to the amount of the purchase price of the 14 1/2 acres of land at $15 per acre.
It is not necessary to state other matters concerning the case. The parties went to trial, and the evidence tended to establish the facts as stated above. The court instructed the jury to return a verdict for plaintiff for the amount due on the face of the notes, after deducting the payments thereon, ignoring defendant's plea of part failure of consideration and the testimony tending to establish the same, and refused the charges asked by defendant submitting the issue to the jury. The jury returned a verdict as directed, and judgment was rendered accordingly foreclosing the lien on the land, from which defendant has appealed.
The court evidently treated the plea of part failure of consideration as a nullity, because it was not verified by affidavit as required by statute.
The question to be decided is: Was the plea a nullity? Or had not the defect — the want of affidavit — been waived by the plaintiff, no objection having been made for that reason, both parties having gone to trial, and the evidence having been offered and the trial having progressed so far without objection to the insufficiency of the plea? Appellant contends that the defect had been waived, and we believe he is right. The statute declares that an answer setting up "that a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part, shall be verified by affidavit." In the case of Williams v. Bailes,
The statute in force at that time was as follows: "No plea impeaching the consideration of any instrument or note in writing shall be advanced unless supported by affidavit of the defendant, or some person for him, stating that the facts set forth in the plea are true." The Chief Justice, Hemphill, noted the fact that the oath was declared to be a positive legal requisite of the plea, but said that it was a requirement for the benefit of the plaintiff, and not of the defendant, and the plaintiff could waive it. "He could no doubt waive it expressly, and if he do so by implication he must be bound by his own acts." He shows the injustice to defendant of refusing his evidence on the plea wanting the affidavit, after going to trial. He says: "As a general rule all exceptions touching the legal sufficiency, whether of form or substance, of the pleading of the parties, should be taken before they go to trial upon the issues of fact. If an objection were subsequently allowed it might operate as a surprise, and greatly to the injury of a party, especially as he is then precluded from curing the defect by amendment. Had the objection in this instance been taken before the trial, the defendants might, had the court permitted and no delay been occasioned, have amended their plea by their oaths; but from the chance of this benefit they are now excluded and their defense, however meritorious it may be, can not avail them." In the case at bar no objection was ever made by the plaintiff. The *345 evidence was all before the court, and then the court so charged as to exclude the defense upon the ground that the plea without the oath was a nullity. It was not a nullity; it could have been amended, if tested before trial, on the facts.
In Rankert v. Clow,
Objections to the form of a defense must be taken and disposed of by exception before trial, and can not be made to the admission of testimony, and certainly not in the charge of the court of its own motion after the defense has been proved. Gaines v. Salmon,
It has been held by the Court of Appeals that the defect of want of oath in plea of failure of consideration must be taken advantage of by special exception. Stegall v. Levy Co., 3 Willson C.C., sec. 469.
In the case of Nasworthy v. Draper, 29 Southwestern Reporter, 564, this court decided that the omission of affidavit to the plea of failure of consideration could not be reached by general demurrer, but that the omission must be specially excepted to, and that the defect was waived unless so specially noticed. We believe the true doctrine is expressed in the authorities above referred to.
In the case of Pickett v. Abney,
Appellee cites us to many cases holding that a plea of non est factum or denying a partnership is a nullity if not sworn to, and that consequently evidence can not be admitted under it and that it will not support a judgment.
There is a distinction between the plea of non est factum and failure of consideration. In the former the effect of the plea is to change the burden of proof, requiring the plaintiff to prove the execution of the note or instrument sued on, and in the latter it merely permits the defendant to establish his defense by proof. Chief Justice Hemphill, who delivered the opinion in the case of Williams v. Bailes,
Reversed and remanded.