We here correct and amend our conclusions of fact by inserting copies of the notes therein referred to as held by the wife of R.S. Parr in her capacity of guardian of the Holcombe minors. They are as follows:
"No. 1. WAELDER, October 18, 1886.
"Three years after date, we, or either of, us promise to pay Mrs. Mary E. Holcombe, guardian for Stella, Herman, E.D., and Jennie Holcombe, the sum of $2673, at Waelder, with interest at the rate of 8 per cent per annum, interest payable annually.
[Signed] "J.L. HALLIBURTON,
"T.H. TRIPPE."
"No. 2. $1565.33. WAELDER, February 20, 1888.
"Five years after date we promise to pay to the order of Mrs. M.E. Holcombe, administrator of estate of George Holcombe, $1565.33, at Waelder, Texas, value received, with interest at 10 per cent per annum.
[Signed] "J.L. HALLIBURTON,
"T.H. TRIPPE."
We have examined and considered with great care the appellee Parr's motion for a rehearing, as well as the ingenuous and able arguments of his counsel thereon; and after giving the motion and arguments full and careful consideration, have been unable to reach a different conclusion as to a proper disposition of this appeal than that attained and announced in our original opinion.
One must allege a cause of action in his pleadings, and to maintain it, prove the facts constituting it substantially as alleged. If he fails in either, he must fail in his suit. It is unnecessary to restate the pleadings of the parties. By his pleadings, Parr's cause of action against the appellant *Page 460 is made to depend upon Halliburton's having a cause of action against Parr. If the matters alleged by Parr are true, they show a complete defense to Halliburton's suit against him, and in doing so, demonstrate that he (Parr) has no cause of action against Hopkins.
Parr can not now be heard to say, for the purpose of sustaining his judgment against Hopkins, "The matters alleged by me as a defense to Halliburton's action are untrue, as is demonstrated by the verdict of the jury in his (Halliburton's) favor." For, to use the classical language of his counsel, he is "nailed to the counter" by his pleadings. Nor can he sustain this judgment by evidence wholly unwarranted by his pleadings. Nowhere did he allege that Halliburton was an innocent holder for value, without notice, of the note sued on. On the contrary, he averred, that at the time of the execution of the note Hopkins and the said Trippe, who was then and there acting for himself and for the plaintiff, were both present, and knew that the note sued on was given under the circumstances and upon the terms and conditions set out in his answer. He alleges that the understanding and condition upon which the note was given was, that upon the occurrence of a certain alleged event, "the consideration for which said note was given should have failed, and said note would then become void and of no further force or effect as against him, and was to be surrendered to him." He alleged also the occurrence of the event.
We fail to see under these allegations how Halliburton could be an innocent purchaser for value of the note, without notice of the consideration for which it was given. If they are true, Halliburton was fully cognizant of the whole transaction, and a party to the understanding and agreement; and he, being one of the payees of the note, was bound to "surrender" it to Parr when the event occurred which according to the understanding made the note void. The allegation is not that Hopkins should surrender the note to Parr; but upon its becoming void it "was to be surrendered to him." Presumably the payees would be the holders of the note, and the obligation to surrender it would therefore be upon them, Trippe and Halliburton.
After giving Parr the full benefit of every inference that can be indulged from his pleadings, we can not find in them the slightest foundation upon which to rest the judgment in his favor against the appellant. If it was legitimate to take up and consider the pleadings of Halliburton for the purpose of ascertaining whether they alleged a cause of action for Parr as against Hopkins, and if so, to give Parr the full benefit of such allegations taken from plaintiff's pleadings alone, or in connection with the allegations in his answer, nothing could be found in them to support his judgment against Hopkins. For the pleadings of the plaintiff are wholly antagonistic to those of Parr. Let the judgment against appellant be viewed from any legal standpoint it may, it will be seen *Page 461 that there is a total lack of pleadings in the record to support it. It matters not upon what evidence the jury may have based its verdict in favor of Parr, nor whether such evidence would warrant it under proper pleadings, the verdict in Parr's favor can not be upheld under the pleadings as they are.
Our findings of fact, as stated in our opinion, are those upon which the judgment in favor of the plaintiff against R.S. Parr is supported. Logically, they are inconsistent with the matters pleaded by the latter against Hopkins; and as the judgment in plaintiff's favor is not complained of by Parr, we think it should be affirmed upon the facts found. And as under no state of facts that could be shown under the pleadings can the judgment against Hopkins be affirmed, we think it is proper to reverse that judgment and remand the cause, with instructions as given in our opinion.
We do not hold that Parr, under proper pleadings, would not have a cause of action, upon the facts proved in this case, against Hopkins. It is not our province to give any opinion as to that matter. We only hold that under his pleadings as they are before us, whatever the evidence may be, the judgment against Hopkins can not be sustained.
Appellee Parr's motion for rehearing is overruled.
Motion overruled.
Justice FLY did not sit in this motion.