On the authority of Jennings v. Moss, 4 Texas Rep. 452, it must be held that the petition is insufficient, and that the court, therefore, erred in overruling the demurrer. It is an elementary principle in pleading, that the facts constituting the right or liability of a party, must be averred. But there is no averment that the defendant made or signed the note, or of any fact from which the legal inference of a liability on his part can be drawn.
It is to be observed, that the ruling of the court upon the demurrer, is not assigned as error. But the error is one which goes to the foundation of the action, and which, therefore, the omission to assign, cannot be deemed to have waived. The petition shows no cause of action, and the recovery, therefore, cannot be maintained, though the error is not assigned. (Salinas v. Wright, 11 Texas Rep. 577.) The judgment must be reversed, and the cause remanded for further proceedings.
Reversed and remanded.