Stacy v. Ross
Texas Supreme Court
Error from Cherokee. Tried below before the Hon. R. A. Reeves. The appellants, A. B. Stacy and Osborn Wells, brought this suit against the appellee on a promissory note for $132 18, bearing eight per cent, interest until paid.
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Error from Cherokee. Tried below before the Hon. R. A. Reeves. The appellants, A. B. Stacy and Osborn Wells, brought this suit against the appellee on a promissory note for $132 18, bearing eight per cent, interest until paid. The defendant answered under oath that the note was obtained from him by fraud and misrepresentation; that he agreed to execute his note for the sum aforesaid bearing five per cent, interest ; that the plaintiff Stacy drew up the note and read it as hearing five per cent, interest to the defendant, who was an illiterate man, unable to read and write, and who was thereby…
1Opinion of the CourtWheeler, C. J.
The plea, supported by the affidavit of the defendant, in effect denies the execution of the note as set out in the petition. It sets out specially the facts which, in the case of a specialty, would he sufficient to support the plea of non est factum. That plea is proper when the deed varies from that declared on, or when it was void ab initio ; as when it was obtained by fraud, or when a different instrument was substituted for the *5one which the defendant supposed he was executing. (12 Johns., 337; 10 Mass., 267, 274.) “If a deed be misread, or misexpounded to an unlettered man, this may be…
2Cases cited2 opinions
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- Phelps v. DeckerMassachusetts Supreme Judicial Court · 1813
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- Garlitz v. Runnels County Nat. BankCourt of Appeals of Texas · 1912
- Swindall v. Van School Dist. No. 53Court of Appeals of Texas · 1931
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