Catlin v. Glover

4 Tex. 76 | Tex. | 1849

Wheeler, J.

The question presented by the record is as to the legal sufficiency of tiie petition.

It is true, as insisted for the appellant, that for the purpose of considering the exceptions to the petition, it is to be taken, as to every fact well pleaded, to be true; but it is only the fact's well pleaded which are admitted by the exception. Are there, then, in this petition facts pleaded which disclose a contract or promise on tiie part of tiie defendant, either express or implied, to pay to the plaintiff tiie money claimed ?

There is no averment of an express promise; and it is. evident that the mere fact of naming the plaintiff' in a deed of trust in which the defendant was tiie the beneficiary is not of itself sufficient to raise an implied promise on the part of the latter to pay the former a sum of money as commissions or otherwise. 1£ a promise can he implied'iu this ease, it must be, from the aver-ments that (lie plaiuiiff “attended to (lie «huios impu.-ml on him by said trust, am! n> the interest of said Glover in that behalf, to «¡»o best of his judgment ami in compliance with tiie instructions of said Che r,” and that “he ought to have and recover ” tiie sum demanded as his reasonable commissions for ids care, trouble, attention, and responsibility in that, bduilf.” But what fact is here stated from which a promise may he implied? V.’hat duties were imposed on the plaintiff by the trust? In wluit respect did lie attend to the interests of tiie defendant? And in compliance with what instructions? In what did his ‘‘•care, trouble, attention, and responsibility” consist? We are not informed by the petition. If facts susceptible of proof existed, (hey were, iiie proper subject of averment, and should have been alleged lo a))]wise tiie defendant of the, proofs intended to be -introduced. IE it be essentially the object of pleading to apprise the court and the opposite party of the facts intended to he relied on in evidence, it is manifest that that object has not boon attained in the present case.

Tiie court, iu our opinion, did not err in adjudging the petition'insufficient; and as the plaintiff declined to amend, the judgment must he affirmed.

Judgment affirmed.