Johnston, McNeely & Clemons v. E. A. Jefferson and Husband, 31 Tex. 332

Latimer, J. —The cause of action in this case was a note executed by a married woman, by her agent, the husband. The defense was, 1st, a general denial; 2d, payment. The error assigned is that the charge of the judge was erroneous because it assumed a statement of facts which did not and could not in the nature of things exist and was calculated to mislead the jury. Agreeably to the pleadings there were and could be only two questions before the jury: 1st, did the defendant execute and deliver the note as set forth in plaintiff’s petition; 2d, has she paid it.

The production and profert of the note was full and ample testimony to sustain the first proposition; and, as the defendant did not deny the execution of the note in the way and manner directed by Paschal’s Dig., Art. 1443, by a plea of non est factum, the only question really for the jury was payment of the note. ' Without discussing the correctness of the charge of the judge, had the charge been applicable to the case, it is apparent that the charge so far as related to the execution of the note was surplusage, and it is also apparent that this was not a prominent point before the jury, and it was calculated to mislead the jurors.

For which cause the judgment is Reversed