City Water Works v. White

Stayton, Associate Justice.— All the material questions in this case depend on whether it was necessary that the pleadings of the defendant, seeking to set up the want of authority in the persons who executed the instrument sued on, should be sworn to; for if this was necessary the court did not err in sustaining the plaintiff’s exceptions to so much of the defendant’s answer, not sworn to, as sought to make that issue; nor did it err in excluding evidence offered for the purpose of showing such want of authority. There are certain defenses which the' statute requires to be made by pleading verified by affidavit, of which that attempted to be set up by a portion of the answer is one. The statute provides that “a denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed,” shall be so verified. B. S., 1265. The action is founded on an instrument in writing, charged to have been executed by the defendant, through its president and secretary, who are alleged to have been fully authorized to execute it, and thereby bind the defendant. This being true, the letter of the statute applies, and we are of the opinion that there is nothing in its spirit which would exempt this case from its operation. That the instrument is ambiguous, and does not clearly purport to be the act of the defendant, does not render it any the less an “ instrument in writing upon which any pleading is founded in whole or in part, and charged'to have been executed by him (the defendant) or by his authority.” In a number of cases in which the instrument on its face did not clearly appear to be the act of the person who sought to show that it was not executed by him or by his authority, it has been held that the person setting up such defense must do so by-an answer verified by his affidavit. Drew v. Harrison, 12 Tex., 280; Reid v. Reid, 11 Tex., 591; Persons v. Frost & Co., 25 Tex. Sup., 130; Prince v. Thompson, 21 Tex., 480; Sessums v. Henry, 38 Tex., 41; Ferguson [539] v. Word, 23 Tex., 177; Lewis v. Lowery, 31 Tex., 663; May v. Pollard, 28 Tex., 678. If the statute in terms referred only to such instruments as on their face purport to be the act of the person by whom or by whose authority such instruments are alleged to have been executed, then a different rule might be applied. In the case of Compton v. Stage Co., 25 Tex. Sup., 78, there are •expressions which would seem to point to a conclusion different to that which we believe to be the one required by the statute. In that case, however, there was a plea of non, ést factum,, verified as the statute required, and a ruling as to the effect of a general denial in cases of this character ivas not necessary to the decision of the cause. It may be that the statute which requires the plea by which the •execution of an instrument sued on is put in issue to be verified by affidavit, in reason ought to apply only to such instruments as on their face clearly import to be the act of the party; but this was a matter for the consideration of the legislature, and not’ for the judiciary. The sole duty of the courts, in this respect, is to determine what the legislature intended; and there being nothing in the language of the statute, or otherwise, indicating that it was the intention of the legislature so to restrain the operation of the statute, we are not authorized so to construe it. We see no such error in the proceedings had in the court below .as require a reversal, and the judgment is affirmed. Affirmed. [Opinion delivered May 9, 1884.]