
    John Ranson v. Berry Gatewood.
    (No. 2926.)
    Appeal from Ellis County.
   Opinion by

Hurt, J.

(Transferred from Austin.J

§ 364. Petition; inconsistent and uncertain allegations in. The petition alleged that defendant executed and delivered to plaintiff a note for $500. That afterwards defendant took up this note and executed another note in lieu of it for $789.33 — which last note had been lost or mislaid. It charged that defendant was indebted to plaintiff in both said notes, and prayed for judgment for his debt, interest and costs. Held, the special exceptions to the petition: 1, that it did not set forth a full and clear statement of the cause of action; 2, that it was uncertain upon which of the notes the plaintiff relied for a recovery; and 3, that it was inconsistent in alleging an indebtedness upon both notes, were properly sustained. These defects in the original petition were cured, however, by an amended petition, in which it was made clear that the plaintiff sought a recovery alone upon the new note which had been given in lieu of the first one. The defendant pleaded that the alleged new note had never been executed and delivered by him in a manner that would make it a valid obligation. The jury found in favor of this plea, and the verdict was supported by the evidence.

October 22, 1884.

Affirmed.  