44 Tex. 421 | Tex. | 1876
The court erred in not allowing the interrogatories propounded by Harrell to Kemper to be taken as confessed; because they were attached to his answer, •filed in the case, and were pertinent to support a good defense pleaded, that the note sued on had been settled and discharged by giving in lieu of it a' number of small notes.
It may be said that the evidence of Haden, offered by .the plaintiff below, Kemper, established for the defendant, Harrell, the facts sought to be established by the answers of Kemper, and thereby cured the error of the Court in not allowing the interrogatories to be taken as confessed, and that a verdict and judgment was rightly obtained for Kemper by the additional evidence of Haden in avoidance of the effect of such answers, if they had been made, as sought by Harrell. It may, however, well be objected to this that the'facts in avoidance of the defense, as proved by Haden, "were not alleged by Kemper in avoidance of Harrell’s defense as pleaded by him, and that if he had had notice of them by their being plead, he might have set up and established in proof a defense of them.
From a view of the whole of thé evidence, it is probable ■ that the justice.of the case was reached, still not in such manner as to "make it certain that' the error of the court
Judgment reversed and cause remanded.
Reversed and remanded.
