1 Posey 143 | Tex. Comm'n App. | 1880
I. Objection was made to the admissibility of the testimony complained of in the first assignment of error on three grounds: (1) That there was no allegation in the answer that the original note was sold and assigned to Yal. Martin; (2) nor averment that the sale to Martin was for a valuable consideration, or what the consideration was, and plaintiff had no notice of the horse trade relied on; (3) that there is no definite allegation of payment in defendant’s answer.
We do not think these objections tenable. The answer is certainly indefinite and vague, but it was not specially excepted to. It is true the plaintiff filed a general demurrer to it, but no action of the court was had upon it, and we must assume that it was waived. Sayles’ Pleading, 86, and the cases cited.
We think it sufficient to warrant the introduction of the proof offered. It alleged “ that the note was not the property of McCartney, but was sold by him to Yal. Martin on the 3d of March, 1873, who, by firm contract made at that time between said Martin and McCartney, became the owner of said note under a promise from McCartney to hand it to
If a more specific averment of the defendant’s defense were needful for the maintenance of the plaintiff’s right, he should have excepted specially to this answer. A defense defectively set forth should be excepted to specially. May v. Taylor, 22 Tex., 349; Williams v. Warnell, 28 Tex., 611.
In Wells v. Fairbanks, 5 Tex., 583, where the plea was, in general terms, “ that the debt had been paid off and discharged,” and the evidence offered was that both parties had stated to witness that they had a settlement, and that Wells, the defendant’s intestate, owed the plaintiff $50, and this evidence being objected to by the plaintiff, was excluded by the court, on appeal, the rejection of this testimony was held to be error. Mr. Justice Wheeler says: “The plea is expressed in very general terms. Mo exception, however, was taken to its legal sufficiency. The subject-matter of it constituted a valid defense, to the action, and if the plaintiff would have taken advantage of any defectiveness in the form or manner of stating it he should have done so by exceptions.” Holliman v. Rogers, 6 Tex., 90; Marley v. McAnelly, 17 Tex., 658.
II. The ground of the second assignment of errors, as stated in the bill of exceptions, is that there was no allegation in the defendant’s answer that “plaintiff had authorized or directed such payment,” to warrant the introduction of proof of that fact.
What we have said in response to the first assignment of errors is sufficient answer to this objection.
Besides, we are of opinion that the allegation in the answer, that the parties notified-defendant of the transfer of the note to Yal. Martin; that William Martin acquiesced therein; that the note was not the property of McCartney, but of Yal. Martin, and that he had fully satisfied the note to Martin, was in effect equivalent to an averment that McCartney had ordered payment to be made of the note to Yal. Martin.
1. There was no allegation under which that proof could have been admitted. “Repeated decisions of this court,” says Mr. Justice Wheeler, in Marley v. McAnelly, 17 Tex., 660, “have settled beyond question that new affirmative matter of avoidance or defense cannot be given in evidence under a general or special traverse, but must be specially pleaded.”
2. And the testimony offered was irrelevant and immaterial. As we have seen, the defendant pleaded “ that the note had been transferred by McCartney to Val. Martin by a firm contract; that the parties had notified him of the fact; that he had acquiesced in that transfer, and had discharged and satisfied the debt to Val. Martin.” He swore on the trial that McCartney directed him to pay the amount owing upon the note to Val. Martin, and that he had done so. It was, therefore, an immaterial issue whether Val. Martin had ever complied with his agreement with McCartney or not. It was not his affair whether McCartney had received full or any consideration for the transfer of the debt. He was notified of the transfer, acquiesced in it, was directed to pay the amount to Val. Martin, and did so. And as the facts which it was attempted to prove could have had no effect upon his legal rights, it was no error to reject the testimony offered to prove them. Nor did the admission of irrelevant unnecessary testimony upon the part of the defense in regard to the horse trade between McCartney and Val. Martin warrant the introduction in rebuttal of equally irrelevant and immaterial testimony on the plaintiff’s part of Val. Martin’s failure to deliver the horses. Love v. Barbour, 17 Tex., 318; Swenson v. Walker, 3 Tex., 93.
IV. The fourth assignment of error, that the court erred in overruling plaintiff’s motion for a new trial, so far as it related to the insufficiency of the answer, or is based upon
So far as a new trial is sought on the ground of newly discovered testimony, the application is manifestly insufficient. The testimony was immaterial. Nothing is proposed to be proved, except in relation to the transfer of the note by McCartney, and the failure of Yal. Martin to perform his part of the horse trade. As to the transfer of the note the evidence would have been merely cumulative. McCartney was sworn on the trial, and testified to the transaction with Gfetzendaner, and Getzendaner could have testified to nothing: more. In relation to the failure of Yal. Martin to comply with his contract, the testimony proposed to be proved by the witnesses would, as we have said, been immaterial and simply cumulative.
And manifestly there was no sufficient diligence shown why the proof, had he thought it necessary to his case, was not produced upon the trial. There is no affidavit of surprise at the rulings of the court, nor, if there had been, is there any good cause perceived why the parties should have been surprised. The answer sufficiently -indicated the defense.
A new trial will not be granted upon the ground of newly discovered evidence, to admit merely cumulative evidence, nor unless it is shown that the evidence came to the party’s knowledge since the trial, and that it was not from want of diligence on his part that it was not sooner obtained (Frizzel v. Johnson, 30 Tex., 36), and it must appear that the testimony is material, and would probably change the result. Madden v. Shapard, 3 Tex., 49.
The fifth and sixth assignments of error go to the sufficiency of the testimony to sustain the judgment of the court.
This statement of facts presents the very frequently recurring case of a direct conflict of testimony. It was quite as positive for the defendant as for the plaintiff, and had the judgment of the court been for the plaintiff instead of for the defendant, we could not say that it would have been unsupported by the testimony.
It is unnecessary to recapitulate the evidence. It is sufficient to say that the defendant’s testimony fully substantiates the allegations of his answer. The judge trying the cause, and whose business it was'to weigh the testimony and judge of the credibility of the witnesses, was satisfied with it. And though we might have arrived ata different conclusion from that formed by him, yet we cannot say that his judgment is clearly wrong. And in such case the general rule is that his judgment will not be disturbed. Baldridge, v. Gordon, 24 Tex., 288; Anderson v. Anderson, 23 Tex., 641; Jordan v. Imthurn, 51 Tex., 289.
We are of opinion that there is no error in the judgment, and that it ought to be affirmed, and so award.
Affibmed.
