Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13. Page: 22
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43-441 SUPREME COURT.
IIolman v. Criswell.
of soine wrong for which redress is sought, and this wrong must, as a matter
of course, be stated in all Courts where the formality of pleading is required;
and if it be not averred, no such case is made as entitles the complainant to
the interposition of the Court.
The only difficulty in holding that the averment of breach is in all cases an
essential portion of the statement of the cause of action, consists in this, that
in sonim cases it is not incumbent on the plaintiff to prove the breach or nonperformance
of the contract or covenant. Its execution being established and its
mattuity passed, its breach will be presumed.
There is no doubt, that as a general rule, the plaintiff cannot be compelled
to assert more facts tllhn on a general denial he would be bound to prove in
order to sustain his ca -'. We have repeatedly held that he cannot prove what
he has not alleged, and as a general rule he ought not to be compelled to allege
what lie is not bound to prove. But there is anothergeneral rule of like cogency
and pervasive influence in pleading, and which is specially applicable to the
question at issue, and that is, the plaintiff must allege such facts in his petition
as would, were they admitted to be true, entitle him to a judgment; and this
certainly lie could not demand unless he complained that some wrong or injury
had been done him, or that some right had been withheld.
For instance, in this' case it may be true that Alexander entered into the
obligations which had been averred. The demurrer admits that such is the fact.
But this fact alone would not authorize a decree for specific execution.
The bond may have been fulfilled. The obligor may not have refused, expressedly
or impliedly, to perform its stipulations. If so, the plaintiff has no
ground of complaint, or to apply to the Court for relief.
He has not stated that the obligations have not been performed, and if on his
averment merely that such obligations [44] were made, judgment be given
in his favor, the absurdity might be presented of a judgment being for him,
when in fact he had no ground to complain against the defendant, and this, too,
when he had not stated that he had any such ground, and when the defendant
may fully have discharged his obligations.
It is true that the plaintiff has alleged that he is entitled to judgment. But
this is a legal conclusion drawn by the pleader from the facts stated. It is not
a fact, and consequently is not admitted by the demurrer, whose office is to
admit facts only, and those which are well pleaded.
The circumstance that the plaintiff would not, on the trial, by the rules of
evidence, be required to prove that the conditions of the bond had not been
fulfilled, that such would be the primafacie presumption on the introduction
of the bond, does not relieve him from the necessity of making out such a case
by hfs allegations as would, if their truth were admitted, be followed by judgment
in his favor. Where suit is brought on a note of hand, the execution of
the note, unless denied on oath, need not be proved, nor is the fact of non-payment
to be established by proof; but this certainly would not exempt the
plaintiff from stating that such note had been made, and that it had not been
paid, or other equivalent averments of its execution and subsisting obligation;
and without such averments the petition would be insufficient, as not showing
that any wrong had been done, or that the plaintiff had, in fact, any cause
why he should bring his action. The rules of evidence may be changed or modified.
Parties may not in special cases be required to prove the facts which
constitute their cases. But this does not relieve them, if they plead at all,
from the necessity of stating such a case as would on its face be entitled to
relief from the Court.
We are of opinion that on the first ground, viz: the want of assignment of
breach, the demurrer should be sustained.
The other ground of demurrer, viz: that the plaintiff has no interest in the
land, the transfer to him being without seal, is not tenable.
[45] A contract for the sale of lands is not, by the statute, required to be under
seal; and whether the agreement assume the form of a bond for title oi other
form, is not material. The signature alone of the vendor is sufficient. 'Now,
22
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13., book, 1876; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28561/m1/30/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .