1 Posey 346 | Tex. Comm'n App. | 1880
There are many errors assigned, consideration of which will not be taken, as they are not likely to arise on another trial.
The mode of proof of agency, which of necessity devolves on the party asserting the benefit of the act, must be regulated by the rules of practice and pleading in the courts where the rights under it are asserted.
By statute, “ no plea of non est factum shall be received or admitted, . . . unless the party pleading the same shall make affidavit of the truth thereof.” Pas. Dig., 1442.
And 1443: “When any petition, answer or other pleading shall be founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party, or by his authority, . . . shall be received as evidence without the necessity of proving its execution,”
“ unless the party by whom, or by whose authority, such instrument or note in writing is charged to have been executed, shall file his affidavit, in writing, denying the execution thereof,” etc.
These statutes have no ambiguity in language used, and the courts have applied them as written. A plea of non est factum not sworn to requires, as does a general denial, the production of the instrument declared on. As to imposing upon the party pleading such instrument the burden of proving its execution, or his cause of action stated therein, it is(a nullity. It may, if not excepted to, perhaps, form the basis of allowing,the defendant the right to introduce his testimony, with the burden against him. Williams v. Bailes, 9 Tex., 64; Drew v. Harrison, 12 Tex., 282.
The instrument in this case having been pleaded as the foundation of plaintiff’s action was admissible in evidence — evidence of all its contents and of what it purported to be. That exceptions to the answer were not urged for its want of verification did not cure its defects. It was the duty of defendant to perfect his plea to obtain the full benefit of the plea. The court was required to apply to the pleadings the law, whenever invoked; the law applied to the case when ruling upon it.
In this case all the testimony of the defendant was admitted as if the pleadings were good, and the court was asked to charge the jury upon the legal effect of the written instrument sued on in the state of the case when it went to the jury. This the plaintiff was entitled to, and its refusal was error.
It is held that, under the statute, it devolved upon the defendant to deny the execution of the paper or of the authority of Ault, .Jenkins & Ault to bind him; otherwise, at least, the burden of proving want of authority would lie upon him, upon the introduction of the instrument.
For error in refusing the charges asked by plaintiff, the judgment should be reversed.
Beversed and remanded.
