
    H. & T. C. R. R. Co. v. T. R. White.
    (No. 1660, Op. Book No. 3, p. 536.
    Error from Travis County.
   Opinion by

White, P. J.

§ 164. Judgment by default on sworn account for damages. Suit against a .railroad company for damages occasioned by the loss or destruction of goods, as shown by an itemized account supported by the affidavit of the plaintiff, in accordance with article 2266 of the Revised Statutes. Judgment by default was rendered for the amount of the plaintiff’s claim, without other proof than the claim itself. Held, that article 2266 did not apply to this character of claim. To entitle a plaintiff to the benefit of that article, it must appear that the debt claimed exists by contract between the parties to the suit, either express or implied; in other words, the action must be founded upon a contract. [R. R. Co. v. Hays & Co. (Ct. App.)post, p. 416; R. R. Co. v. Morris (Ct. App.), post, p. 427,] Because of insufficient evidence, the judgment by default was set aside.

April 16. 1881.

Reversed and remanded.  