Carmichael v. Curlee , 1939 Tex. App. LEXIS 543 ( 1939 )

Appellee brought this action on a promissory note and for foreclosure of a chattel mortgage lien upon an automobile. He alleged that appellant was justly indebted to him, as evidenced by a certain promissory note, and set out the terms of the note, but not in haec verba. He did not affirmatively allege that he was the owner of the note, or that the note was ever executed and delivered to him. Appellant contends that in the absence of those allegations appellee was not entitled to recover. It is generally true that in a suit upon a promissory note the plaintiff must allege ownership or execution and delivery of the instrument. 6 Tex.Jur. p. 904, § 239; Wilson v. Martin, Tex. Civ. App. 87 S.W.2d 539, writ dismissed.

In his forty-five page answer and cross-action appellant more than once admitted execution and delivery of the note to appellee, but contended that the same was procured by fraud. No part of the answer was abandoned or superseded by other pleadings, or stricken on exception, although the court dismissed the cause of action asserted by way of cross-action, for want of jurisdiction. This dismissal did not have the effect of striking the pleading embracing the admission mentioned, which was made, in one place, in appellant's affirmative pleading of his defense of fraud on the part of appellee. This admission in appellant's pleading effectually supplied the omission from appellee's pleading of the essential allegations mentioned 33 Tex.Jur. p. 620, § 171.

The judgment is affirmed.