4 Tex. 226 | Tex. | 1849
The objection to the sufficiency of the petition is that there is no averment that the defendant made or executed the note set out in it. The liability of the defendant must depend upon the fact of his having made the note. But this fact is nowhere alleged. There is no averment of any fact connecting the defendant with the note sued on. There is no privity of contract shown, and without it there can be no right of action. To have shown a right of action, the plaintiff must have alleged a title in himself and some act of the defendant creating a legal liability on his part. It is not enough that the plaintiff is the owner of the note sued on; it must also appear that the defendant is liable upon the note. This liability can only appear by averment, But there is no averment of any fact from, which the legal inference of the liabili'y of the defendant can be drawn. j
Had there been an allegation that the note was made or signed by the defendant, or any equivalent allegation, the petition would doubtless have been sufficient. But without such an averment it is clear that it discloses no cause of action, and the demurrer was rightly sustained.
If, when the. petition of the plaintiff was adjudged insufficient, lie had asked leave, to amend, that right would doubtless have been accorded to him ; or, if refused, a remedy would have been afforded by appeal. The statutory prohibition of amendment after the parties have announced themselves ready for trial must be, understood only of an announcement of readiness for trial upon the issues of fact, and not upon the issues of law, which must first he disposed of. Any other construction would render nugatory the provision of the statute which secures the right of amendment.
But the plaintiff not having asked leave to amend, but having rested on his insufficient pleading, this court can afford him no relief.
We do not deem it necessary to enter upon a discussion of the remaining objection. If the settled, uniform practico of this and every other court which has been constituted to administer the justice of this country may be regarded as having settled any question, it certainly has settled that it is competent, in rendering judgment final in favor of the defendant, to adjudge the costs of the suit against the plaintiff.
Judgment affirmed.
