135 S.W. 161 | Tex. App. | 1911
W. J. Decker sued S. A. Pitzer, and obtained a judgment, under the following circumstances: Decker executed and delivered to Pitzer a promissory note for $297.30 in payment of the first premium for a certain life insurance policy, which note was transferred by Pitzer to an innocent purchaser before maturity. The plaintiff alleged that said note was fraudulently obtained, that the consideration had failed, but that the innocent purchaser of the same had sued him, and obtained judgment for the sum of $356.75, for which he prayed judgment against Pitzer. The petition contained the further allegation that said judgment is now in full force and effect as an obligation and liability of this plaintiff. The defendant interposed a general demurrer and general denial, and the principal question presented on this appeal is the correctness of the court's ruling in respect to the demurrer.
It is contended by appellant, Pitzer, that the petition shows no cause of action, inasmuch as it fails affirmatively to allege the solvency of the plaintiff or his intention to pay the judgment. As against a general demurrer, all reasonable intendments are indulged in favor of the sufficiency of the pleading. Solvency, and not insolvency, will be presumed; and, reading the petition in the light of this presumption and the rule first referred to, we have no doubt that it states a cause of action. Besides, this action is essentially one for damages, and at all events it would be a question of fact whether the plaintiff is damaged or not by the recovery of a judgment against him. It could not be said as matter of law, even though he were insolvent, that he has not been damaged by the recovery of a judgment against him.
It is next complained that the court erred in permitting appellee to amend his petition after announcement of ready for trial, and after the taking of testimony had begun. The amendment allowed was to meet a variance in the matter of the initials of the payee in the note mentioned. It is too well settled to require the citation of authority that the statutes forbidding amendments after announcement of ready for trial (Sayles' Ann.Civ.St. 1897, art. 1188) are directory, and that the court may, in the exercise of its sound discretion, permit an amendment after an announcement of ready for trial by the parties, where it seems necessary to attain the ends of justice.
Neither is there any error in the court's ruling on evidence complained of in the third assignment. If the letters, the introduction of which in evidence is complained of, were otherwise admissible, it would be no valid objection that the writer stated that he had no power or authority except in an advisory capacity. A court or jury would not be bound by such statement. It might or it might not be true.
We find no error in the judgment, and it is affirmed.
