Hugh Lewis v. J. B. Lowery et al., 31 Tex. 663

Morrill, O. J. —Plaintiff brought suit against the defendants, alleging that they were partners, doing a certain business in the name and style of J. 33. Lowery. That as such they executed a certain instrument and delivered it to plaintiff, signing their firm name thereto. This instrument is made in part the cause of action. Defendants pleaded the general denial. On the trial of the cause the plaintiff proposed to read this instrument as testimony, to which defendants excepted, unless plaintiff previously should prove the alleged partnership. The court sustained the exception; plaintiff took a nonsuit, and moved to have the nonsuit set aside; which was refused by the court.

Article 1448 provides that when any petition shall be founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party or by his authority, such instrument or note in writing shall be received as evidence without the necessity of proving its execution, unless the party by whom or by whose authority such instrument or note in writing is charged to have been executed shall file his affidavit in writing denying the execution thereof.

The defendant, as well as the district judge, seems to have conceived that the plaintiff was required to prove that the defendants were partners, before the instrument could be read as testimony. But such is not the statute. Had the defendant denied under oath the allegation that the instrument was executed by his authority, then the plaintiff, by proving the partnership, and that one of the partners executed it, would have made out his case. The statute is as extensive as it is possible to imagine.

It does not include promissory notes or bills of exchange, or notes for the payment of money or property only, but “ any instrument.” It is not necessary that the suit should be based entirely upon the instrument; but it.is sufficient if the instrument forms a part of the testimony to make out the plaintiff’s case. The defendant knew whether he authorized the execution of the instrument or not, and the statute made it his duty to verify his denial by his oath.

When the plaintiff announced himself ready for trial, the pleadings were such, that he was not required to prove the execution of the instrument, and it would have been wrong in him to have had witnesses summoned to prove a fact that was legally admitted. He was compelled to take a nonsuit, or permit a judgment to be rendered against him, and in either case the error of the court could be examined in this court. The judgment is Reversed and remanded.