This is an action brought against plaintiff in error and another, to recover damages, and that part of the petition setting forth the cause of action was as follows: "That on the _____ day of December, 1890, and prior thereto, plaintiff was engaged in the city of Dallas, in said county and State, in business as a liquor dealer, on which date plaintiff owned the liquors, merchandise, and all the other articles and property set forth in the instrument hereto attached marked exhibit A, with which merchandise and other property plaintiff carried on his said business. At said time plaintiff had the right to the possession of the building in which was contained all of said property. On December 6, 1890, and in the absence of plaintiff, defendants entered his said place of business and seized and took into their possession all of said articles, liquors, and merchandise as itemized in said exhibit, and have converted to their possession all of said articles. That defendants have continuously since withheld from plaintiff possession of said building."
The petition then sets out the several claims for damages, but does not set forth the acts on which the action was based otherwise than as before stated. *Page 535
A nonsuit was taken as to the other defendant, and on the trial plaintiff was permitted to prove that plaintiff in error was the sheriff of Dallas County, and that the acts of which he complained were done by one of his deputies, under process against another person.
This evidence was objected to, on the ground that the petition contained no averments of such facts, and only alleged a trespass by defendant in person; but the court overruled the objection.
The rule, that a plaintiff must state the essential facts which constitute his cause of action, is elementary; and this the statute emphasizes by requiring him to make "a full and clear statement of the cause of action." This is necessary to inform a defendant of what he is called upon to answer, and to enable him to prepare his defense.
The petition informed defendants that plaintiff based his action on their personal acts, and gave no intimation whatever of intention to hold either of them responsible for acts done by another person for whose conduct they or either of them were responsible.
The facts necessary to be proved to sustain the cause of action alleged were, that plaintiff was the owner of the property described in the petition, and that defendants had seized and converted it. This could be met by proof that those facts did not exist.
The facts necessary to sustain the cause of action asserted through the evidence were, in so far as plaintiff in error was concerned, that plaintiff was the owner of the property; that defendant was the sheriff of Dallas County; that the person who made the seizure was his deputy, and that he made the seizure while acting officially.
Each of those facts, in such a case, it would be incumbent on the plaintiff to prove, and it was necessary to allege them in order that defendant might prepare to meet them.
There was not even an averment that plaintiff in error was sheriff, and the answer consisted of a demurrer and general denial.
As stated in Mims v. Mitchell, 1 Tex. 447, "The object of pleading is to apprise the court and the opposite party of the facts on which the pleader intends to rely as constituting his cause of action or grounds of defense. And the averment should set forth the facts relied on with such precision, clearness, and certainty as to apprise the opposite party of what he will be called upon to answer, and what is intended to be proved, so that the evidence introduced may not take him by surprise. Such certainty is essential in order that the facts relied on by either party may be understood by the party who is to answer them, by the jury who are to ascertain their truth, and by the court who is to give judgment upon them. 2 Cowp., 682. When there is not such certainty, objections to evidence ought to be sustained; for a party ought not to be permitted to prove what he has not averred. * * * The rules governing judicial proceedings should be such as to promote fairness, candor, and probity *Page 536 in every stage of a cause, and to attain the ends of justice with the least possible indirection, and not such as to encourage duplicity, evasion, and deception, and to elevate subtlety, craft, and cunning to the vantage ground of learning, talent, and candor. Yet such would be the tendency of such rules as should not require the pleader to state fairly and specially the facts relied on to sustain his action or defense."
In the case of Guffey v. Moseley, 21 Tex. 408, the petition alleged that Moseley shot a mare belonging to plaintiff, and sought a recovery for the injury resulting; but on the trial offered to prove that a slave, under direction of Moseley, fired the shot. The court excluded the evidence, and plaintiff then took a nonsuit, which the court refused to set aside; and on writ of error it was held, that nonsuit should have been set aside and leave given to plaintiff to amend.
The Supreme Court was evidently of the opinion that the evidence was properly excluded, but felt that the ends of justice required that plaintiff should not lose a right shown by the evidence to exist, through the insufficiency of his pleading, which might be amended.
It was said, however, that "The theory of our system of pleadings requires the parties to state the facts of their cases, and not legal conclusions deduced from the facts. That is, the material, issuable, substantive facts should be stated, and not the legal effect of those facts on the one hand, or matters which are merely subsidiary or evidence of facts on the other."
The essential and issuable facts in the case made by the evidence offered by plaintiff have been stated, but they were not alleged, and the court should have excluded the evidence on objections made.
What plaintiff in error may have known was unimportant; for he was only in court to answer the case made against him by the petition.
Decisions possibly may be found holding the averments of the petition sufficient to admit such evidence as was admitted; but under the rules of pleading in force in this State such decisions are not applicable.
The judgments of the Court of Civil Appeals and of the District Court will be reversed and the cause remanded.
Reversed and remanded.
Delivered April 5, 1894. *Page 537