Burnley v. Rice

• Decision Date: 01 January 1857
• Citation: 18 Tex. 481
• Parties: ALBERT T. BURNLEY v. WILLIAM M. RICE AND OTHERS.
• Court: Texas Supreme Court

18 Tex. 481

ALBERT T. BURNLEY

v.WILLIAM M. RICE AND OTHERS.

Supreme Court of Texas.

1857.

It sufficiently appears from the evidence, that Love (by whom the debt sued for was contracted) and the plaintiff in error, Burnley, were joint owners and partners in the proprietorship and carrying on of the plantation.

He contracted the indebtedness in question on account of, and to carry on the business of the co-partnership; and pledged the partnership credit and effects for payment.

But it is said Love exceeded his authority in contracting this debt, and his copartner is not bound for its payment, because cotton had been previously cultivated upon the plantation, and this debt was contracted in preparing for and carrying on the cultivation of sugar, and that there is no evidence that Burnley consented to the change in the business of the partnership. If it had appeared that the partnership articles or agreement restricted their operations to the cultivation of cotton, when that ceased, it might have been contended that the partnership, and consequently the power of one partner to bind the firm was at an end. But as it does not so appear, it is a question of the continuance of partnership; and evidence sufficient to establish a continued partnership, is sufficient to charge the members with the obligations incurred by the firm.

The silent acquiescence of Burnley, after he must have known of the change of cultivation; the fact that he suffered the reputation of their partnership to continue; his failure to produce, at the trial, the articles of partnership, or any evidence to show that the managing partner had exceeded his authority, except the mere fact that cotton had been previously cultivated, or any evidence that he had ever disapproved of the change, are cogent circumstances in support of the conclusion of the jury, that the change was made by his authorization and express consent. The evidence was sufficient, prima facie, to warrant that conclusion, unless there had been something shown to the contrary.

See this case as to the course necessary for a partner to pursue, in his defence, where he claims that the plaintiff and his co-partner have knowingly mixed in the same account (sued on) against the partnership, transactions for the individual benefit of his co-partner and transactions for the benefit of the partnership.

Where suit is brought upon an account, which is referred to as part of the petition, and the plaintiff has a verdict and judgment on proof of the acknowledgment of a certain amount due, it cannot be objected for the first time in this court, that the account was not filed or produced at the trial.

A contract on partnership account, and on the joint credit of the partners, is not the less binding on all the partners, because made in the individual name of one of the partners.

The power of one partner to bind the firm, by contracts made by him within the scope of the partnership business is not confined to commercial partnerships.

Quere, whether where it appears from the record, that the cause was submitted upon special issues to the jury by consent, the inference is that other issues were waived, notwithstanding there is a bill of exceptions showing that “upon the trial,” another issue was proposed by one party and overruled by the court. Such other issue in this case related to a matter which was not in litigation.

Error from Brazoria. Tried below before the Hon. Nelson H. Munger.

On the 29th of July, 1841, James Love conveyed to Albert T. Burnley one undivided half of his plantation in Brazoria county, and one half of all the slaves, stock of every description, farming utensils and everything attached to and belonging to the plantation; “it being intended by this instrument to invest the said Burnley with one equal undivided half, so as to make him a full and equal partner in the plantation.” Burnley resided out of the state. Love resided at Galveston, and superintended the plantation and managed its business. In 1846 Love gave a deed of trust on the whole property, to secure his note for $15,000 to N. A. Ware, payable ten years after date, with interest at twelve per cent. per annum, payable annually, with power to sell and discharge the whole debt in case of failure to pay the interest punctually. In 1849, Love gave a deed of trust as follows:

The state of Texas, county of Galveston: This indenture, made this 17th day of February, A. D. 1849, between James Love of the county of Galveston and state of Texas, of the first part, and Alfred F. James of the county of Galveston and state aforesaid; witnesseth that, whereas the said James Love is now indebted to William M. Rice and Charles W. Adams, merchants and partners in trade, doing business in the city of Galveston under the firm, name and style of Rice, Adams & Co., in the sum of six hundred and twenty-four 85-100 dollars, and whereas the said Rice, Adams & Co., at the instance and request of the said James Love, have agreed and contracted with the said James Love to furnish and advance to the said James Love all the supplies necessary for the use of his family, and for the use of the plantation on Oyster Creek, in Brazoria county, owned jointly by said James Love and A. T. Burnley; and whereas also the said Rice, Adams & Co., at the instance and request of the said James Love, have agreed that they will accept such drafts as said Love may draw on them for the necessary amount to purchase the machinery and apparatus, to be propelled by horse power, necessary for making sugar, and for the materials necessary to be purchased for the construction of a sugar house, all for the use of said plantation; the whole of which advances and acceptances not to exceed the sum of four thousand dollars, without the consent of said Rice, Adams & Co., and none of said drafts to be made payable before the first day of January, 1850; and whereas one N. A. Ware now holds a deed of trust upon the premises and most of the property hereinafter conveyed, bearing date the 9th day of April, 1846, to secure to said Nathaniel A. Ware the sum of fifteen thousand, five hundred and thirty-one dollars, the annual interest on which sum is payable on the first day of February in each and every year; and it being agreed and understood by and between the said James Love and the said Rice, Adams & Co., that they, the said Rice, Adams & Co., shall have the right, in case they deem it necessary or proper for the protection of their own rights and interests so to do, to pay off and discharge any instalment of interest on said debt, which may have become due and payable, according to the tenor and effect of said deed of trust, and have and hold the amount of such interest, so paid, as a debit and claim against the said James Love, and, the said James Love being willing and desirous to secure to said Rice, Adams & Co. the payment of the debt above mentioned, as now due, as also to secure to them the prompt payment of all such advances of family and plantation supplies as they may furnish and advance, as hereinbefore contemplated, and also to secure to them the payment of all such sums as they may advance on account of any drafts they may accept for the said Love, and also to secure to them the payment of all such sums as they may advance for the payment of interest on said debt, so secured to said Ware by deed of trust as aforesaid, as well as the payment of all the usual and proper charges of commissions and interest for all such advances and acceptances, all of which payments are to be made by the said James Love to the said Rice, Adams & Co. on or before the first day of April, 1850. Now this indenture witnesseth, that said James Love, for and in consideration of the premises, and for the further consideration of ten dollars to him in hand paid by the said Alfred F. James, the receipt whereof is hereby acknowledged, has granted, bargained and sold, and, by these presents, does grant, bargain, sell and convey to the said Alfred F. James his heirs and assigns, one undivided half of all the following described property, real and personal, to wit, etc.:

Here followed a description including the plantation, slaves, stock, and all the personal property belonging to the plantation, with a power to sell in the usual form.

At same time, Love gave a deed of trust as follows: The state of Texas, county of Galveston: Whereas, Charles W. Adams, who contracts for himself and partners, composing the mercantile firm of Rice, Adams & Co., of the city of Galveston, has this day contracted with James Love, who contracts for himself and A. T. Burnley, joint owners and cultivators of a certain plantation on Oyster creek, in the county of Brazoria, in manner following, to wit: the said Adams, for himself and partners, engages and agrees to furnish said plantation, belonging to said Love & Burnley, with all supplies for the same, as the same may be ordered by the said Love on said firm, payable on or after the first day of February, 1850, but not sooner, for the purchase of machinery for making sugar, to be propelled by horse power, and of the necessary materials for the erection of a sugar house on said plantation, to be built of wood, the supplies to be furnished and drafts not to exceed the sum of four thousand dollars in all, unless said Rice, Adams & Co. choose to extend the same; and, whereas, said Love, in order to secure the said Rice, Adams & Co. the prompt payment of the sum of six hundred and twenty-four 85-100 dollars, now due and owing to said Rice, Adams & Co. by said Love, as also to secure the prompt payment of such supplies and acceptances above contracted, on or before the first day of April, 1850, has this day conveyed, in trust, to Alfred F. James, trustee, all of said Love's undivided one-half interest in and to said plantation, slaves, stock, and other personal property on said plantation, and has engaged and does hereby agree, for himself and said A. T....