On Motion for Rehearing.
Plaintiff in error has filed a motion for rehearing, insisting that the court erred in rendering judgment against him on the second note, because it appeared that the same was not due at the time suit was filed thereon. It will be recalled that the suit was instituted on two notes, each of which contained clauses to the effect that failure to pay either of said notes, or the interest thereon, when due, would mature the entire indebtedness at the election of the holder thereof. We think the allegations in the original petition, which are set out in the original opinion, relative to this contention, together with the allegations contained in the first and second trial amendments filed by defendant in error, Smith, are sufficient to show such election. It appears from said amendments that, upon failure to pay the first note both notes were sent to the bank for collection, with instructions on the part of Smith, defendant in error, to demand payment of the entire amount, on the ground that the first note had not been paid.
We think these allegations, together with the prayer in the petition asking for judgment for the entire indebtedness sued upon, were equivalent to a declaration that the holder had elected to declare the notes due, and *1176that both of said notes, under the allegations above referred to, were in fact due at the time judgment was rendered thereon. See Graham v. Miller, 24 S. W. 1107; Luzenberg v. Bexar Bldg. & Loan Ass’n, 9 Tex. Civ. App. 261, 29 S. W. 237. In Graham v. Miller, supra, this court held, through Mr. Chief Justice Key, then Associate Justice, that, where the only thing necessary to the maturity of the note is the holder’s election that, it should mature, an averment that he has demanded payment is, unless specially excepted to, a sufficient averment of notice that he has made the election, and that the debt is due. In the last case above cited, the San Antonio Court of Civil Appeals held, on a somewhat similar question, that the filing of the petition was, at least, prima facie evidence of such election.
The original petition having alleged facts showing that the first note was not paid at maturity, on account of which defendant in error alleged that he caused both notes to be sent to the bank for collection and caused demand to be made for paymeiit thereof, and the failure on the part of plaintiff in error to pay either of said notes, under the circumstances, together with the prayer asking judgment for the entire indebtedness, was sufficient, in the absence of a special exception, to show that the defendant in error, Smith, had exercised his option to declare said indebtedness due at the time the suit was instituted; for which reason the motion for rehearing is overruled.
Motion overruled.