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43 Tex. 175

Wood v. Evans

Texas Supreme Court

Decided July 1, 1875

Texas Supreme Court · decided 1875-07-01

Error from Washington. Tried below before the Hon. I. B. McFarland. J. 0. Evans sued F. P. Wood and others, alleging “ that plaintiff and O. V. Evans were duly appointed and qualified as administrators of the estate of J. F. Evans, deceased, by virtue of an order of the probate court of Washington county, and that letters of administration issued from said court to plaintiff and the said 0.

Key passage — most relied on by later courts

“■‘The demurrer to the petition should have been sustained. It is alleged in the petition that the defendant had failed to pay the note therein described, except the amount credited on the note, and that there was still a large amount due thereon. But neither the amount of credits nor the amount claimed to be due and unpaid is averred. The mere statement of some indefinite and uncertain amount being due to the plaintiff, for which he asks judgment, is not such a fiill and clear statement of his cause of action and prayer for relief which the facts authorized him to ask of the court as will warrant a judgment on his behalf. The cause of action and its breach should be distinctly averred and set forth. The facts sufficient to warrant a judgment should be directly and clearly alleged. It is not sufficient that they may, by argument and inference, be decided as conclusions from the facts which are averred.””

quoted by 1 later decision, including Howell Cotton Co v. Citizens' Nat. Bank of Waco

Good law ✅— No negative treatment on recordhow we know

Decided 1875-07-01

How this case has been cited

Cited by 6 later decisions — most recently April 1962

1 federal appellate · 5 state decisions

201875188018901900191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Moore, Associate Justice.

¶1The demurrer to the petition should have been sustained. It is alleged in the petition that the defendants had failed to pay the note described therein, except the amount credited on the note, and that *182there was still a large amount due thereon. But neither the amount of credits on the note nor the balance claimed to be due and unpaid is averred. The mere statement of some indefinite and uncertain amount being due the plaintiff, for which he asks judgment, is not such a full and clear statement of his cause of action and prayer for relief which the facts authorize him to ask of the court as will warrant a judgment on his behalf. The cause of action and its breach should be distinctly averred and set forth. The facts sufficient to warrant a judgment should be directly and clearly alleged. It is not sufficient that they may, by argument and inference, be decided as conclusions from the facts which are averred.

¶2It sufficiently appears from the petition that the suit was brought by defendant in error in his representative capacity as surviving administrator, and that the note upon which there was an unpaid balance claimed to be due was assets belonging to the estate of his intestate.

¶3But for the reason previously stated the judgment must be reversed and the cause remanded.

¶4Reversed and remanded.

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