Cartwright's Adm'r v. Jones' Adm'r , 13 Tex. 1 ( 1854 )

Lipscomb, J.

There has been but one ground of error assigned that can be regarded of such importance as to require the notice of the Court. It is alleged that the Court below erred in not sustaining the objection made to the admissibility of the letter from the attorney, J. H. Herndon, acknowledging the payment of four hundred dollars, because the character of evidence was not defined by the answer with sufficient certainty.

The answer states that the debt claimed by the plaintiff had been much, more than paid in full; that on the 18th day of April, 1840, said defendant’s intestate paid the sum of four hundred dollars on said judgment, for which he, or his intestate, had never received any credit; that said claim had been by mistake, overpaid to the amount of three hundred dollars, or some other large sum of money ; that on the said 18th day of April, 1840, said plaintiff acknowledged the receipt of the said sum of money as will be shown in Court on the trial thereof, &c. There was no exception taken to the form of this answer, and on the trial a letter from the plaintiff’s attorney who had obtained the judgment in his favor, acknowledging the receipt of the four hundred dollars, bearing the date stated in the answer, was read in evidence. We can perceive no error in receiving the evidence objected to. The acknowledgment is for the receipt of so much money. If it had been for the receipt of property, or payment had been made in something else than money, it would have been necessary to state the facts as they existed.

The proof, however, corresponded with the allegation in the answer, that it had been paid at the time stated, and the receipt of the money acknowledged by the plaintiff’s attorney.

The question as to the precision with which payment should be alleged was discussed in the case of Wells v. Fairbanks, (5 Tex. R. 522,) in which it was ruled, that if a fact be pleaded the evidence of such fact may be submitted to the jury, although not specially developed in the pleading by a detail of all the attendant circumstances; that although a statement of the facts constituting the defence, is indispensable in our practice, it is not necessary to state such circumstances as are merely the evidence of these fact. In this case the fact material to the defence was the acknowledgment of the receipt of the money, on the day stated; the letter was the evidence of the fact alleged. The judgment is affirmed.

Judgment affirmed.