*1 ALLEN NAT. y. DRUMMOND BANK DRUMMOND v. ALLEN defendant Dig. ceptible 4. Sales signment, sued estoppel upon special exceptions privilege sence 6. Sales 3. Tenue quirement plead erwards recover posed to of the 5. Sales tious 925.*] the is the not be evidence claim recover the the contract other was denied the of included fendant . Presumptions. [Ed. Note.—For other tion Assignment. Waiver Claim Plea Statement toppel dence. [Ed. Note.—For covery [Ed. Note.—For other pay impossible Pleading goods defense that the absence of a statement of That In an action A In an action on a Assignments tonio. In an action on an ruling §§ §§ the evidence. Dig. 31; of a buyer Note.—For Note.—For simple allegation Cent. 296-301; Dee. 88-90; exceptions (§ 391*) (§ 396*) sold were (cid:127)On Motion for Rehearing, Jan. filed a difference, Recover Price —Defenses. op Right county and Error and Error Dec. below was the account of sale, at( Rescind. Price. 1135 Dec. Dig. pleading, (§ fictitious; the merits exceptions buyer, sustained, rescind the defendant’s up Facts — plea alleging op Privilege based Dec. and was on ; —Remedies —Remedies other ground other §§ —Rescission — keep goods bought court to of a Dig. buyer kept —Form—Matters to Recover though 3729-3734; buyer’s assignment Dig. Dig. and it is not Action purchase price proye cases, eases, Eppect. are in (§ 925*) assigned claim, of Texas. San fraudulent and of residence cases, purchase. NAT. accordance with the defendant who was 58.*] § 121.*] and that defendant constitute waiver leged §' determine whether and of fraudulent pellees. court, complaining 11.*] the exclusion of such op Buyer op Buyer fraud in the see § see the record —Fraudulent to rescind. claim, on —Absence 391.*] see meets BANK — goods bought, by Buyer- considered Venue, wrong; but, them Dec. Sales, Sales, Sales, Price —Es- allegations. Review in the ab- Assigned overruling Pleading, fact paid. presume and aft- for op pleaded plea of be dis- for de- the re- Dig. where where —Ac 'Cent. —Re et Cent. Drummond, suffi- ficti- Evi can- sus- An- an- as- al. — for and he berg, Wells, Judge. son Allen pellant J. H. Drummond and another. valuable mond which it fendant for the wherein was upon Guy filed a but to The draft was on Drummond with the account attached. both tiff bank. tion account or claim of legations, as to both son ant quiring jurisdiction,” etc. Defendant Drum- other Young specially or facts cient to reveal the to maintain does not ferson lege, gether ulently ty allege any mond, & Blain Action TALIAFERRO, [Ed. Note.—For accept Revised plaintiff against county by Young also upon presentation Mitchell, parties, claiming estopped from Crain & Both wherein National Bank of Cent. county J. H. defendant Drummond’s things tending appeals. apply. consideration, assigned from Howth, or A and facts sufficient Dig. Jackson the Allen Statutes. defendants, alleged pay Drummond and J. O. B. draft Young court -of Jackson Lewright, Drummond, it was further Jackson to show such fraud. draft drawn Drummond a The paid by purpose section 4 and sale pleaded bank, § Edna, excepted action specially excepted Reversed and remanded. the draft. that said other facts to the J. failed to misjoinder was drawn above basis of Beaumont, alleged prosecuting defendant that venue of the National Defendant Drummond alleged alleged guaranty were simulated and This cases, alleged Edna, County Court; Drummond refused Dec. estoppel. special exceptions to the latter enabling plaintiff resident “in the action Proctor, Victoria, upon defendant, bank allege any resident suit Dig. fixed see Tex., court, by Young up- for constitute an county. Bank statutory case, among Drummond, been, parties the action bank Defendant § 551.*] originated Judgment the coun- J. acted failed to in Jack- of Jack- Appellee Vanden- Defend- 1194 of against for answer was an Young, of Jef- Drum- fraud- of ac- plain- privi- L. F. suit, por- fact rule ap- ap- to- al- al- other cases * For see same & Rep’r Key-No. & Am. Series *2 (Tex. 152 SOUTHWESTERN REPORTER 740 disposal plea privilege was overruled. be held for of account of this de- having agreeing sold; ex- fendant Tlie sustained the this defendant to ceptions thereto, of as no statement refund to the differ- said J. the pre- accompanies record, any, .ence, if the which it should facts we be determined inspection competent by the after an that the of of said rice sume allegations persons assignment of and there was between the defendant, by eliminated, Drummond, was said the J. O. B. to this allegations value; support real denied with to for said rice that the market but the those ship proof. the directed, thereby waiving [2, Appellant proposi 3] rice as claim contends the damages against assignment tions under defend- his first of error this that the of fraud simulated ant.” assignment [5, properly 6] These do not that, upon be of which can of in order to raise those state facts special excep allege predicated, was sufficient for him to and therefore the assignment that tious was is as the transfer and were ficti tion sustained. proposi fraudulent, by appellant under his and made for the sole contended purchaser conferring upon of that the court of tion to this the county jurisdiction keep the afterwards recov Jackson of ferson purchase price paid, defendant, Drummond, this de a resident of Jef er the by plea agree of be elements In this contention we fense cannot None defendant’s is. reached estoppel appear simple allegation of of with the the assignment requirement second the under The fact meets the Texas sary, answer. system. is not neces overruled. proper, plead reversed and the cause the The is evidence. appellant up in that When his answer remanded. assignment the the transfer or against fictitious, he him was susceptible proof, Appellees not error that it was was he should a fact contend special excep- allege the not have to sustain been the trial court tion to privilege. appellant’s expected by make evidence which he the the proof. Wallis, They the con- find fault witli Pearce also the The Co., by appel that, absence the Landis & 124 S. W. cited of this court clusion lant, very assumed case. it must be much with this a statement excep- portion cor the to which In rectly case the court was to have the held that tion appellant plea privi eliminated, consider a refused was sustained support lege upon permitted the or to admit evidence the by They say: did “In the view of fraud because specific record, undisputed as the trans terms shown to, it Therefore seems fer fraudulent or simulated. referred herein above sustaining strange passing should we believe exception court erred us privilege. presumed appellant’s plea be that it must have found appellant exception overruled have to offer testi- The was denied should assignment proof mony contention upon plea. appellees herein have been heard transaction between should appellant’s purely ‘fi;ame-up’ will and mere error simulated forcing litigate appellant to the in Jackson appellant’s rather than in Jefferson [4] The second county.” action of trial error attacks the sustaining are no facts shown But there to fhat artless frankness refer portion defendant ing ord. exception by appellant estopped to two bills of from rescind us they say at answer in which evidence offered the contract. fully exception set out. as trial was sustained is to which candidly They admit that bills these “That defendant had waived expung- exception had, right, “stricken out and he to rescind the con of all rice, purchase purchase from the record” the trial ed tract sought they motion, price herein for the reason that of which is recov their own says appellees ered, not state the true facts. Then because this payment parte after the half more ex affi- J. O. refer us to dozen or ®. purchase agreed price some means found their which davits rice, way expunged bills this de into the record notified complaint suggest exception, that, fendant, if we will when Young, the said only study documents, was, we come rice delivered those will B. J. O. although claims, that, in accordance with the terms understand he purchase, of fraudulent said struck out contract issue, of this defendant never- at the rice Campo; El issues to be rice mill there allowed the devel- at to theless Broussard v. O’DONNELL EPLEY abstract. No such lis, tained. erred assignments 1907, plea of that erred pose is the v. Polk Street, that lar, the record for not in a acted the law with the venue in another present claim was tion to the fact ceedings we are of Schurenberg (Sup.) specifically Baker ment it-was there lees declare thereby of the cause the bank in oped answered ment was case of the transaction answered must be held that the court’s either defendant Landis untruth, and the ease special jury. the court declared sustained. as two It is further contended unauthorized of the evidence c. in not the court by the Thirtieth referred to Pearce Case trial court was immaterial. several law was County, trial court accompanied the record. answering to the merits holding that conferring 133, striking in that case had. for the in the Tex. Civ. urged no & Co. et form in use Notwithstanding present an charging evidence, issue between refusing of error because ease, reference charge opinion pleas that this 123 S. sufficient, the reason below. present conditions so simi in this Yet the court held “No such it out the ease of negative. stated jurisdiction.” peculiarly al., in conflict with Stevens It App. 304, 60 Tex. in his as held in proposition introduced in such that a defendant exclusive, W. entirely any error submitting Legislature give that the therefore, before the enactment supra, issue of therefore it did county, However, consider issue was submitted erroneous, statement of no pleas seeking charge exception. us a true state If fixing be submitted the statute defense 1194a, Pearce v. Wal expunged that the action call is not upon, 90 W. no harmless and In although a fraudulent and the might can be point. Lockett affirmative, to be question it? S. They urge committed they our Gatlin v. amending the aver privilege, jury claim privilege Laws pleaded, without in that is rare change a Appel- he has atten venue it not from based state pur can sus Nor *3 pro the en to judgment, in remove Advebse Possession 4. find on one defendant’s boundary line was not invalid for failure to until two pending against an ment bond for writ of error was not filed too late. where it of judge, same judgment may far as the prived fense. There are few occur ord sufficient to reveal the Error, 1172.*] termine (149 court the evidence and filed But this fendants served is not sustained allegation S. wrong will a Verdict — Evidence —Time Geounds. Facts —Statement statement of The motion for Appeal 1895, indulged against order, The statute hence An Under Court of Civil S. W. deprived Nov. be filed with the when bills shall, Note.—For other Note.—For other litigant in its EPLEY et usually possible evidence, approved a, approved court, applies other cases- fairly to be whether the trial court was gave such art. is not “statement decrees costs of statements of fact after days fence; On Motion for a and Ebbob and Ebbob and Ebbob 27, Suppiciency. in hearing, record reveals be considered statement of the evidence x), respects 1346, requiring ruling. Exceptions filed under R. S. verdict in a suit 1912. On Motion after overruling special exceptions, than that of possible, authorizing only by publication, such a case. Here the court providing annulled him in another statement of facts Appeals exclusion of 564.*]- rehearing al. v. defendant a limited time to 2500; op Filing. Jan. filing him in this court. to statements of evidence cited, affirmed. because in'such 2555, 2558, 2501-2506, (§ papers .right the evidence” with R. rights prove O’DONNELL. Evidence. no correct an erroneous in its erroneous of Texas. Austin. apparent pleadings, for reversal that a presumption issue in a is overruled. of the cause. . —Statement —Statement us, a material de- 1895, nonresident de- are more valuable evidence, to material signed filing, to establish papers to this court. —Revebsal— assignments petition and, a he was de- limitations, a setting sued therefrom Re- art. statement reviewing this rule rule 62a but such Special adjourn- and, without case was a cause 1346, out so it Dig. Key-No. Rep’r *For other oases see same &Am. in Doc. Series &
Drummond v. Allen Nat. Bank
152 S.W. 739
Tex. App.1912Check TreatmentAI-generated responses must be verified and are not legal advice.