It is a well accepted postulate of the common law that a civil litigant who asserts an affirmative claim for relief has the burden to persuade the finder of fact of the existence of each element of his cause of action. Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85, 89-90 (1954); Albright v. Long, 448 S.W.2d 564, 565 (Tex.Civ.App. — Amarillo 1969, no writ). Therefore, when Vance alleged facts entitling him to recover for his performance and his allegations were denied by Steak House, Vance was placed in the position of having to prove every fact essential to his case.
Matthews v. Simmons, 589 S.W.2d 156, 159 (Tex. App.-Tyler 1979, no writ) (first citing Tex. Van Lines v. Templeton, 305 S.W.2d 646, 648 (Tex. App.-Dallas 1957, writ ref'd n.r.e.); and then citing Albright v. Long, 448 S.W.2d 564, 566 (Tex. App.-Amarillo 1969, no writ)); see Roby Indus., Inc. v. Maxwell Elecs. Corp., 409 S.W.2d 559, 561 (Tex. App.-Dallas 1966, pet. ref'd n.r.e.) ("Of course, Roby had the right to sue on three alternative causes of action.
A party may plead alternative theories of recovery, present the facts as they understand them to be, and recover under any one of their theories. Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App. — Amarillo 1969, no writ); Texas General Indemnity Co. v. Sheffield, 439 S.W.2d 431, 434-35 (Tex.Civ.App. — Houston [14th Dist.] 1969, writ ref'd n.r.e.). Bantuelle also argues that the Williamses' repeated testimony that they did not know they had signed a deed constituted an "express rejection" of their deed-as-mortgage theory.
Lewis v. Hatton, 86 Tex. 533, 26 S.W. 50, 51 (1894); Rules 45 and 47, Tex.R.Civ.P. The appellee has complied with these requirements concerning her petition. Pleadings can be in the alternative, and a petition using the term "and/or" was not too indefinite to state a claim upon which relief could be granted. Texas Van Lines v. Templeton, 305 S.W.2d 646, 648 (Tex.Civ.App. — Dallas 1957, writ ref'd n. r. e.); Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App. — Amarillo 1969, no writ). The record reveals that the findings in the judgment and in part of Conclusion of Law No. I are stated in the alternative; they are not positive findings that either one of the alternatives occurred.
Plaintiffs have no obligation to do anything. They sued for specific performance of their contract and alternatively for damages. They abandoned their plea for specific performance, and recovered on their alternative plea, as they had a right to do. Reynolds Bros. Inc., v. Dodson, (Tex.Civ.App., Corpus Christi) NWH, 380 S.W.2d 678; Rule 47 TRCP; Albright v. Long, (Tex.Civ.App., Amarillo) NWH, 448 S.W.2d 564. The findings upon which the $4,960 damages are based have not been attacked. Contentions 2 and 3 complain of the award of exemplary damages.
Plaintiff was entitled to plead and prove inconsistent causes of action and seek alternative relief. Thus, his plea to overturn the foreclosure sale and his alternate prayer for damages caused by the alleged wrongful foreclosure were properly combined in a single suit. Rules 47 and 48, Texas Rules of Civil Procedure; McKenzie v. Carte, 385 S.W.2d 520, 526 (Tex.Civ.App., Corpus Christi, 1964, error ref. n.r.e.); Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App., Amarillo, 1969, no writ); Cantu v. Bage, 467 S.W.2d 680, 682 (Tex.Civ.App., Beaumont, 1971, no writ). In this case, plaintiff pleaded his alternative causes of action and defendants could not put him to an election thereon in the venue hearing. Texarkana Water Supply Corp. v. L. E. Farley, Inc., 353 S.W.2d 885, 889 (Tex.Civ.App., Houston, 1962, no writ); Monroe v. Mercer, 414 S.W.2d 756, 760 (Tex.Civ.App., Houston, 1967, error dism.).
We are not concerned here with the doctrine of an election of remedies since the two separate actions could have been prosecuted alternatively in one suit. Rules 47 and 48; McKenzie v. Carte, 385 S.W.2d 520, 526 (Tex.Civ.App. — Corpus Christi, 1964, error ref. n.r.e.); Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App. — Amarillo, 1969, no writ). In our blended system of law and equity, plaintiffs could pursue each of such remedies simultaneously in the same suit. University State Bank v. Gifford-Hill Con. Corp., 431 S.W.2d 561, 574 (Tex.Civ.App. — Fort Worth, 1968, error ref. n.r.e.).