Van Hook's v. Letchford & Co. , 35 Tex. 598 ( 1872 )

Walker, J.

This was an action brought by the defendants in error on a promissory note.

The plaintiffs in error, defendants below, denied the cause of action generally, and by way of special answer ■denied that their testator, Solomon Van Hook, was a member of the firm of H. C. Moss & Co. The special answer was sworn to, and it was probably intended that the answer should be regarded as a plea of non est „factum. The affidavit, however, in support of the plea, we think, falls far short of the requirements of the law, Article 1442, Paschal’s Digest. It cast no suspicion •on the instrument sued on; it avers that the affiant never heard Van Hook, in his lifetime, say that he was a partner of H.. C. Moss & Co., and that, in the lifetime of Van Hook, the affiant never heard anybody else say that he was a partner, etc.

This might all be true, and the affiant at the same time know that Van Hook was a partner of H. C. Moss & Co.

The affidavit is rather in the nature of a negative pregnant, and is calcnlated to cast a stronger suspicion upon the knowledge of the affiant than upon the instrument sued on ; especially so, when we consider that the opportunity was offered of amending the affidavit, and. was declined,—the plaintiffs in error preferring an appeal rather than make the simple amendment that, to the best of their knowledge and belief, Van Hook was not a member of the firm of „H. 0. Moss & Co.

The defendants in error filed this transcript, and suggest delay under the act of May, 1871. The damages' provided under the eighth section of this act are so-onerous that this court will require a clear case before-it will assess them ; but we will affirm this judgment,, with ordinary damages.

Affirmed with damages.