Tolbert v. McBride

COLLARD, Judge. The appellant concedes that the averments of the original petition were sufficient except in the following particulars: It did allege that the note was made, executed, and delivered, but failed to allege that it was so done for a valuable consideration; it did allege that it was transferred to pilaintiff by the payee for a valuable consideration after its execution, but failed to state the precise date; and it failed to allege that plaintiff was still the owner. The amendment cured these defects by formal allegations, and appellant insists that in so doing a new cause of action was set up, which being done more than ninety days after the note as a claim against the estate had been rejected by the administrator, was barred by the limitation prescribed by the statute in such cases. We can not agree to this. The original suit and the amendment set up the same note, the same liability, and the same-right in the plaintiff. The omission of formal allegations in the original petition as stated were amendable, and the amendment related back to the filing of the original petition. Thouvenin v. Lea, 26 Texas, 613; Kendall v. Riley, 45 Texas, 20; 56 Texas, 152. A promissory note imports a valuable consideration, and none need be jmoved, even when a sworn answer is filed impeaching the consideration, where no evidence is offered to support the plea. The filing of the plea does not shift the burden of proof. Mor does the holder to whom a note is endorsed in full have to prove that he paid value. He is prima facie a holder for value. Defendant offered no evidence in support of his pleas. In such case the production of the note, with the endorsement, makes a prima facie case. Jones v. Holliday, 11 Texas, 413; McAlpin [98] v. Finch, 18 Texas, 835; Watson v. Flanagan, 14 Texas, 353; Harris v. Cato, 26 Texas, 339; Knight v. Holloman, 6 Texas, 153; Rev. Stats., arts. 266, 267, 271, 272. Appellant insists that there was error in the judgment, because there was no proof that he was the administrator of the estate. Ho such proof was required. He had not put the matter in issue by a special plea that he was not the administrator, and the general denial did not put the fact in issue. 3 Wait's Act. and Def., 270; Will, on Ex., 1654, 1655; 3 Chitty Pl., 940, note; Cheatham v. Riddle, 12 Texas, 112. Appellant also contends that there was no proof that the claim was presented to the administrator and rejected by him, and therefore the judgment was erroneous. There is a rejection of the claim endorsed on it on May 16th, 1886, by J. H. Tolbert. He did not sign “as administrator of the estate” sued, and there was no evidence that he was the person sued as administrator, or that he was in fact the administrator. It is the law that to maintain the suit it must be averred and proved that the claim was presented to the administrator of the estate and rejected. Fulton, v. Black, 21 Texas, 425; Hall v. McCormick, 7 Texas, 278; 43 Texas, 624. But the statute provides that “the memorandum of the executor or administrator endorsed or annexed to such claim may be given in evidence to prove the facts therein stated, without proof of the handwriting of the executor or administrator, unless the same is denied under oath.” The endorsement on the claim in this case must be deemed sufficient to prove the presentation and rejection of the claim, in the absence of a sworn denial of the fact. It is true J. H. Tolbert is not proved to be the identical person sued and who answers as defendant, but in the absence of proof it would be presumed that he is the same person. He was alleged to be the administrator, or J. H. Tolbert was alleged to be such administrator, the claim was alleged to have been presented to and rejected by him, and J. H. Tolbert answered the suit as defendant. If there were two persons of the name, and the one sued wras not the person who signed the memorandum endorsed on the claim, it was the dutji.of defendant to show it. Such facts will not be presumed. Finding no error in the judgment of the court, we conclude it ought to be affirmed. Affirmed. Adopted November 12, 1889.