Thomas O. Moody v. Benge &. Jewell, 28 Tex. 545

Coke, J. —This is a judgment by default, rendered in the District Court of Tarrant county against the plaintiff in error. The case is submitted by the defendant in error upon a suggestion of delay. Upon inspection of the record, we find an error patent upon the face of the petition for which the judgment must be reversed.

Waiving the question as to whether the allegations of the petition, taken together, are tantamount to an averment of the execution of the note sued on by Moody, the plaintiff in error, of which we think there may be some doubt, there is no averment of a delivery of the note to the defendants in error, nor that they are the owners and holders of the note. The petition alleges that Moody “gave” his promissory note, but to whom he gave it is not alleged.

It is .true, we may infer from the statements of the petition that he gave it to Benge & Jewell, and that they are the owners of it, but in doing so we would be dispensing with a well-established rule of pleading, which requires that the facts constituting the right of a party to recover, and fixing the liability of his adversary, shall be averred directly and distinctly in his pleading, and not left to be supplied by inference.

An averment that the note was delivered to the plaintiff, or to some other person through whom he claims, is as necessary to entitle the plaintiff to recover as is the averment of its execution by the maker, otherwise there is no 'privity of contract established between the parties, no liability fixed on the maker, and no right shown in the plaintiff. (Jennings v. Moss, 4 Tex., 452.) The cases of Lipscomb v. Bryan and Malone v. Craig, 22 Tex., 610, are precisely in point and decisive of this.

In those cases, where the petitions averred the execution and delivery of the notes sued on by the defendants, but did not aver to whom they were executed and delivered, the court said: “We are of opinion that the petitions in these two cases do not state the cause of action of the plaintiffs with sufficient precision and accuracy to entitle them to recover.” And such is our opinion in this case. The judgment will be reversed and the cause remanded, to afford the plaintiffs in the court below an opportunity to amend their petition. Reversed and remanded.