Cates v. Maas

Opinion by Hurt, J. §161. Consideration; verification of a plea that a written instrument is without, held insufficient. In this case the defendant interposed as a defense to the promissory note sued on, that it was without consideration. The plea was verified by his affidavit stating “that the matters and things alleged in the foregoing plea are true, in substance and fact, to the best of his knowledge and belief.” An exception to the plea because “the affidavit to the truth of the same is not positive, but to the effect that the same is true, in substance and in fact, to the best of the knowledge and belief of affiant,” was sustained, and the plaintiff recovered a judgment for the amount of the note. Held: The statute provides that an answer setting up “ that a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part,” shall be verified by affidavit. [Art. 1265, E. S.] In the case of Wilson v. Adams, 15 Tex. 323, where one of the pleas enumerated in the statute cited was in question, the defendant having made oath to its truth, “to the best of his knowledge and belief, ” the court held, Hemp-hill, J., delivering the opinion, that the affidavit was insufficient. To the same effect is the case of Davis v. Campbell, 35 Tex. V79. We are cited to no case by appellant holding the contrary. The plea was bad for want of proper affidavit, and the court did not err in sustaining exceptions thereto. Affirmed.