Van Alstyne v. Bertrand
Texas Supreme Court
Appeal from Washington. Suit by the appellant against Austin & Bertrand on a draft drawn by the latter, and protested for non-payment. Bertrand pleaded that the draft was given by Austin in payment of his individual debt, as one of the firm of Austin & Edrington, of which the plaintiff had notice.
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Appeal from Washington. Suit by the appellant against Austin & Bertrand on a draft drawn by the latter, and protested for non-payment. Bertrand pleaded that the draft was given by Austin in payment of his individual debt, as one of the firm of Austin & Edrington, of which the plaintiff had notice. The facts were as follows: H. W. Baylor being indebted to Austin & Edrington, and having a note for §1000 on B. B, Thomas and others, assigned the §1000 note to Austin & Bertrand in discharge of his indebtedness to Austin & Edrington, and received from Austin & Bertrand their note for the excess of…
1Opinion of the CourtWheeler, J.
The objection to the admissibility of the evidence,' that it did not conform to the allegations of the answer, we do not think well founded. Although every mate*179rial, traversable matter of fact, relied on by a party, must be averred in pleading ; yet it is never necessary to allege those circumstances which are but the evidence of the facts on which the party relies as constituting his right. The simple allegation of the fact is suEcient, without relating all the minute circumstances which do but conduce to prove the truth of it. (Wells v. Fairbank, 5 Tex. R. 582.)
The objection to the want of…
2Cited by7 opinions
- Houston & T. C. R. R. Co. v. ShaferTexas Supreme Court · 1881
- Wilkins v. FerrellCourt of Appeals of Texas · 1895
- McCauley v. Long & Co.Texas Supreme Court · 1884
- Guadalupe County v. JohnstonCourt of Appeals of Texas · 1892
- Tippett v. GatesCourt of Appeals of Texas · 1920
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