25 Tex. 333 | Tex. | 1860
The instrument on which the suit is brought, is not a contract for the payment of the full sum of six hundred dollars, in any event. It is a contract for the payment of that sum, less a credit, the amount of which was thereafter to be ascertained. It does not evidence a cause of action for the full amount specified, and will not support a recovery for that amount. It is an elementary principle that, to support a recovery, the plaintiff must show a cause of action co-extensive with the recovery. It devolved on the plaintiffs to make out their cause of action. If the interest of Walker’s estate had been sold, and the amount credited on the note, it was incumbent on the plaintiffs to show it, to entitle them to the recovery they have obtained.
If the contract had been for the payment of so much money, with a privilege to the defendants to reduce the amount by the proof of any fact or any act to be done by them, it would then have devolved on the defendants to aver and prove the fact or performance of the act on their part, upon which their right to claim a reduction of the amount stipulated to be paid depended. But such is not the case. The promise is not for the payment of six hundred dollars, but some less amount, thereafter to be ascertained. The plaintiffs manifestly were not entitled to recover the full amount specified; they have not shown themselves entitled to recover the amount specified, less the credits upon the note, because they have not shown that these or either one of them was the credit contemplated and stipulated for by the contract. It does not appear by their averments or proof, that they had a cause of action to the extent of the recovery which was adjudged to them. The note was subject to a credit. It does not appear that the credit has been allowed, or that anything has transpired to excuse the plaintiffs from making the contemplated deduction from the sum specified. The plaintiffs have manifestly failed to show a cause of action to the extent of their recovery. The judgment must therefore be reversed, and the cause remanded for further proceedings.
Reversed and remanded.
