Whitaker v. Record
Texas Supreme Court
Error from Collin. The case was tried before Hon. Hat. M. Burford, one of the district judges. This was a suit upon a promissory note executed by Samuel Whitaker, and indorsed hy David Stiff* John W. Haynes, and William Wilson. The petition of Record in the court below did not allege that the note was due, or that payment had been demanded. The returns of the sheriff were irregular. At the trial judgment was taken hy default.
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Error from Collin. The case was tried before Hon. Hat. M. Burford, one of the district judges. This was a suit upon a promissory note executed by Samuel Whitaker, and indorsed hy David Stiff* John W. Haynes, and William Wilson. The petition of Record in the court below did not allege that the note was due, or that payment had been demanded. The returns of the sheriff were irregular. At the trial judgment was taken hy default. The defendant petitioned for writ of error and supersedeas, and alleged for error: 1. That the petition did not disclose any right of action, and contained no averment…
1Opinion of the CourtWheeler, C. J.
—The petition is manifestly insufficient to support a recovery. It contains no averment of any breach of contract on the part of the defendants. It is not enough that the plaintiff is the holder of a note which the defendants are liable to pay; it must appear by averment that they have violated their contract, by refusing to make payment of the note agreeably to their undertaking,' in order that the petition may show a cause of action. It is essential, to constitute the statement of a cause of action, that it appear, by averment, not only that the plaintiff has a right, but that the defendant…
2Cited by5 opinions
- Merriman v. Swift & Co.Court of Appeals of Texas · 1918
- Johnson v. WiseCourt of Appeals of Texas · 1925
- McWhorter v. EstesCourt of Appeals of Texas · 1915
- Beck v. NelsonCourt of Appeals of Texas · 1929
- Davis v. WhiteCourt of Appeals of Texas · 1918