George v. Vaughan , 55 Tex. 129 ( 1881 )

Watts, J. Com. App.

A general demurrer is an objection to pleading for the want of substance, as contra-distinguished from a special demurrer, which is an objection to the form in which a cause of action or ground of defense is stated. If the pleading is so defective in substance that it does not present such cause of action as would authorize a judgment to be rendered thereon, then it would be subject to the operations of a general demurrer.

In the case of Lambeth v. Turner, 1 Tex., 367, in treating of the operations of a general demurrer, Justice Lipscomb said: “It cannot avail, whatever informality, irregularity or defect there may be in any part of the petition, if there should be a good cause of action, independent of those objections.”

And in the ease of Williams v. Warnell, 28 Tex., 612, the court held that “ the legal effect of a general demurrer is to admit the facts pleaded to be true, but to deny that they constitute a cause of action or ground of defense.”

From these and other cases decided by the supreme court, we deduce the true rule to be. applied in testing the correctness of the ruling of the court below sustaining a general demurrer to a pleading, to be this: That, admitting to be true all the averments in the pleading, then does it constitute such cause of action or ground of defense as will sustain a judgment thereon? If it does, the demurrer ought to be overruled; and if it does not, the demurrer should be sustained.

In the case before us the plaintiff did not sue for the statutory penalty of fourfold the amount extorted (Pasch. Dig., art. 3830), but for the $28.80 which he claims was an overcharge that he paid appellee, and for damages for detention, and for punitory or vindictive damages on account of the fraud, malice and oppression of the appellee in refusing to record the bill of sale until he was paid the $30.30.

■ The petition does not aver that appellee was the clerk of the district court of Guadalupe county. The clerk of the district court was then the only officer authorized or required by law to record bills of sale or other written instruments. Nor did the petition show that appellee, Vaughan, was authorized or required by law to record such an instrument. In our opinion, to constitute a cause of action, it was essential either to aver that the appellee was at the time the clerk of the district court of Guadalupe county, or else that he was authorized and required by law to record such instrument; otherwise appellant could not recover money knowingly, and in the absence of mistake or fraud, paid to a private individual for services performed. And it is equally clear that he could - not recover damages for delay, caused by the refusal of a private individual or person not authorized or required to perform the services, for refusing to be employed except for a stated amount.

A proper disposition of this case will be to affirm the judgment.

Affirmed.

[Opinion delivered April 29, 1881.]