Jones v. Holliday, 11 Tex. 412

Jones v. Holliday

11 Tex. 412 | Tex. | 1854

Wheeler, J.

The question is whether, to entitle the plaintiff to recover, it was necessary for him to aver and prove a consideration for the order on which the suit was brought. A consideration is essential to the validity of a simple contract, whether it be verbal or in writing. This rule applies to all contracts not under seal, with the exception of bills of exchange and negotiable notes, after they have been negotiated and passed into the hands of an innocent indorsee. (2 Kent, 464, 5th Edit.) In contracts under seal, a consideration is implied, in the solemnity of the instrument. And bills of exchange and promissory notes are of themselves, jyrima facie *415evidence of a consideration, and in this'respect are distinguished from all other parol contracts. (5 Wheat. R. 277.) As to-all other contracts, if the consideration be not expressed or admitted in the writing, it must be proved. (4 Pick. 71; 7 Conn. 291.) All contracts are, by the law, distinguished into agreements by specialty and agreements by parol. If they be merely written and not specialties, they are parol contracts and a consideration must be proved. (7 Term R. 350, n. (a); 9 Cow. R. 778 ; 4 Johns. R. 235 ; 5 Mass. R. 301; 1 Stew. R. 51; 4 Munf. R. 95.)

It has been held that an admission in a contract in writing, that it was made for a valuable consideration, is prima, facie evidence of a sufficient consideration to support it. (4 Shep. R. 394.)

In the present case, however, the writing contains no such-admission. Had it been expressed to be for value received, that might have been held, as an admission, sufficient evidence of a consideration to support the judgment.

The acceptance of the order was an admission on the part of Jones, that he had in bis possession the cotton of Poster; and, as between them, was a sufficient consideration for the undertaking of Jones, at the request of Foster, to deliver the cotton. But as between the plaintiff, Holliday, and the defendants, we see nothing in the case to take the contract, sued on, out of the general rule, applicable to parol contracts, that the consideration must be averred and proved.

In declaring upon such a contract, the rule, under the Common Law system of pleading, is, that the consideration upon which it is founded must be stated;, and must appear to be legally sufficient to support the promise, for the breach of which the action is brought. The declaration must disclose a consideration, or the promise will appear to be nudum pactum, and the declaration will consequently be insufficient. (1 Chit. Pl. 321; 2 McCord, R. 218; 3 Johns. R. 100; 4 Id. 235, 280.) On principle, the same specialty would seem to be required by the rules of pleading, which we have adopted.— *416Where the contract affords, of itself, evidence of a consideration, it will be sufficient, to set it out, or describe it in the petition : for then the petition will disclose, in the contract itself, a sufficient consideration, prima facie, to support the action ; and will, consequently, be sufficient without any other statement of a consideration. But where the contract does no-afford such evidence, the consideration must be stated. The application of thes principles to the present case, would have required the Court to sustain the demurrer to the petition, and to have awarded a new trial on account of the insufficiency of the evidence.

We think it was proper to permit Fostor to become a party defendant. He was a party in interest, and, therefore, properly a party to the suit. That the plaintiff was not required to join him as a defendant in the suit, did not deprive him of the right, if he saw proper, to become a party. But, for the reasons before stated, we are of opinion that the judgment be reversed and the cause remanded,

Reversed and remanded.