Hillebrant v. Booth

Hillebrant and another v. Booth, Adm'x

Hillebrant v. Booth, 7 Tex. 499 (1852)

Court: Texas Supreme Court · State Highest Courts
Decided: July 1, 1852
Judges: Wheeler
Citations: 7 Tex. 499

Cited by 9

Headnotes

'The answer may embrace a general denial and a plea in confession and avoidance; and, in so far, it may embrace inconsistent defenses. But each plea in confession and avoidance must constitute, in itself, a good defense to the action, and, consequently, must be consistent in its averments.

Summary

Error from Jefferson. This was a suit upon a promissory note, less in amount hut similar in its description to that on which the suit was brought in the case heretofore decided between the same parties. (Ante, 493.) The defenses relied on were the same, and the pleadings the same in substance, with the exception that, after stating that the consideration of the note sued >on was the purchase by the defendant Perry of certain notes, accounts, and land papers belonging to the estate of the plaintiff’s intestate, and sold by her at public sale, &c., as in the case before referred to, the answer contained the further averments that there was no sale or delivery to the defendants of anything whatever as the consideration of the note; but that it was given in •consideration of a contract in writing, which was set ont and made a part of the answer, and was the same described in the ease above referred to between the same parties; that the only benefit expected or which could have accrued to the defendants as a consideration for the note sued on was the observance by the plaintiff of her promise and undertakings in that agreement; and that she had not observed the same. Exceptions to the plea were sustained, and the only question presented by the record not considered and disposed of in the case heretofore decided was •as to the legal sufficiency of the plea of failure of consideration, as presented in this case.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Wheeler

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Wheeler, J.

The statute which authorizes the defendant, in his answer, to plead “as many several matters” as lie nmy think necessary for his defense, while it gives the rigid, at the same time and in the same answer, to interpose *251 two ov more distinct and independent defenses by separate and distinct, and, it may be, inconsistent pleas, does not dispense with the necessity of pleading the facts which constitute eacli ground of defense by consistent averments. The answer may embrace a general denial and a plea in confession and ¿avoidance, and, in so far. it may embrace inconsistent defenses. But eacl) plea in confession and avoidance must constitute, in itself, a good defense to the ■action; and, of consequence, must be consistent in its averments.

It is an elementary and primary requisite of a good plea that it be capable of iproofTaFcl, conseq neñÍ3NTRa^t^lawew^TIÍe]pfeadHrjniistj;taie'lth.e..factsnn. -WlTfcrilie relies, accordi^^ThTrtMjtlLoLthe case, or his pleading will notavajl jiinTon the triídr3E2hr-mlíl-^^0JlE5l;^ns^'1^r->-^fi^<Tll¡i'l,í&-Ell-tlMil!ii!Íl'.Y,_ ñfVTCTyjSéatlingi. Hence, if it judicially appear to the conrE''irQm..tb-e ttefojffl"' _jgnt’s own, admissions oQl^g^nitguP.tiá^i^w^^t-H — is^nrnt-iHHvit-ndlLb.e^o^ nq^validity. If the ayei-injiiitsIiRjineansistent. and thus.contradict and falsify. _íttéffi§iIveS£niEéy cannotfBe suscepíibLejiLpKQfil. Á plea setting up as a defense ^ffflmñ^IcoñBdéraEioñlwlTieli alleges that such failure consisted in the existence and non-existence of a given fact, presents on its face an absurdity, and, of consequence, must be invalid.^

Such is the character of the plea of failure of consideration in this ease. It •alleges that the consideration of the note has failed, for that it was given in the purchase of certain notes, accounts, and land papers, the property of the plaintiff’s intestate, and which were sold by her at public sale; and that there was no sale or delivery by the plaintiff of anything whatever, and that the consideration of the note was an entirely different'one from that before alleged. This plea is manifestly untrue upon its face, and was rightly rejected by the •court. The judgment is affirmed.

Judgment affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 9 cases

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Relies on it most ⓘ

St. Louis, Arkansas & Texas Railway Co. v. Whitley13 S.W. 853 (Tex. 1890)
Curry v. Texas Co.8 S.W.2d 206 (Tex. App. 1928) · Dissent
Michels v. Boruta122 S.W.2d 216 (Tex. App. 1938)
West Texas Utilities Co. v. Farmers' State Bank in Merkel68 S.W.2d 648 (Tex. App. 1934)
Dallas Ry. & Terminal Co. v. Redman88 S.W.2d 136 (Tex. App. 1935)
Moore v. Rice80 S.W.2d 451 (Tex. App. 1935)

Most recent

Michels v. Boruta122 S.W.2d 216 (Tex. App. 1938)
Dallas Ry. & Terminal Co. v. Redman88 S.W.2d 136 (Tex. App. 1935)
Moore v. Rice80 S.W.2d 451 (Tex. App. 1935)
West Texas Utilities Co. v. Farmers' State Bank in Merkel68 S.W.2d 648 (Tex. App. 1934)
Curry v. Texas Co.8 S.W.2d 206 (Tex. App. 1928) · Dissent
Bache v. Bache262 P. 11 (Ariz. 1927)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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