John O. P and W. K. Bond v. Michael Mallow, 17 Tex. 636

Hemphill, Ch. J. Suit on a note by the Bonds, promising to pay Mallow fifteen hundred dollars for a tract of land purchased of him. The note was set out in the petition. The defendants pleaded a general denial, and that they were citizens of Gonzales and not suable in the county of Guadalupe. The judgment was for plaintiff for the amount of the notes, and foreclosure of the lien upon the land. Several errors were assigned, out one of which was insisted upon in argument by the plaintiffs in error, and this was to the effect that the Court erred in its charge, in assuming the debt to be proved and sustained.

The charge in substance was, that if the jury believed from the evidence that the land described in the petition was the land for which the note was given, and that it is in Guadalupe county, they will so state and render a verdict in favor of the plaintiffs for the amount of the note sued upon with interest. There can be no valid objection to the direction of the Court to find for the plaintiff the amount of the note, and interest. There is no statement of facts, and we must presume that all the proof necessary to sustain the verdict was adduced. The pleadings of the defendant disclosed no defence.

The general denial to a suit on a note being as nearly equivalent to no answer as it can be and yet have the name of a plea. The most that can be claimed for it would be to require of the plaintiff the production of the note. But this should be produced at the trial, whether there be or not pleadings by the defendant. The presumption is that there was no variance between the note sued upon and the one offered in evidence. If there was, objection should have been made at the time, and its not being made is proof that there was no foundation for such objection.

The case is presented here as if there was not a scintilla of evidence against the note ; and there was no error in the instruction to find for its amount with interest. The charge is not in conflict with the Statute which forbids a Judge to charge on the weight of evidence; then as to the note there was no conflict, nothing for the jury to weigh or balance or have any doubt upon at all.

Would it not be preposterous to require a Judge (where a note is sued upon, set out in the pleadings and offered in evidence, without objection on the part of the defendant who appeared) to instruct the jury that they must take the adduced note, and compare it carefully with the one described in the petition, and if they found no variance, they should give a verdict for the plaintiff ; and if he did not so charge, but simply instructed them to find for the plaintiff, the judgment should be set aside?

We have repeatedly held that where the evidence was all on one side, and sufficient to support the verdict, it is no invasion of the province of the jury, for the Court to instruct them to find such verdict. (5 Tex. R. 151; 10 Id. 116 ; 11 Id. 585.) We believe the defendant in error to be entitled to the benefit of his suggestion of delay, and it is ordered that the judgment be affirmed with damages. Affirmed with damages.