Wood v. Evans

43 Tex. 175 | Tex. | 1875

Moore, Associate Justice.

The demurrer to the petition should have been sustained. It is alleged in the petition that the defendants had failed to pay the note described therein, except the amount credited on the note, and that there was still a large amount due thereon. But neither the amount of credits on the note nor the balance claimed to be due and unpaid is averred. The mere statement of some indefinite and uncertain amount being due the plaintiff, for which he asks judgment, is not such a full and clear statement of his cause of action and prayer for relief which the facts authorize him to ask of the court as will warrant a judgment on his behalf. The cause of action and its breach should be distinctly averred and set forth. The facts sufficient to warrant a judgment should be directly and clearly alleged. It is not sufficient that they may, by argument and inference, be decided as conclusions from the facts which are averred.

It sufficiently appears from the petition that the suit was brought by defendant in error in his representative capacity as surviving administrator, and that the note upon which there was an unpaid balance claimed to be due was assets belonging to the estate of his intestate.

But for the reason previously stated the judgment must be reversed and the cause remanded.

Reversed and remanded.