Buzard v. McAnulty

Decision Date23 May 1890
Citation14 S.W. 138
CourtTexas Supreme Court
PartiesBUZARD <I>et al.</I> v. McANULTY <I>et al.</I>

De Berry & Wheeler and Barnard & Green, for appellants. J. R. Fleming and L. W. Campbell, for appellees.


Buzard & Hilliard instituted this suit against McAnulty & Mosty, charging that on the 13th day of August, 1881, said McAnulty & Mosty were partners, and doing business as such under said firm name, and so continued until the 7th day of October, 1881; that on the first-named date the said partnership made with Robert A. Houston the following contract in writing: "Dodge City, Ford Co., Kansas, August 13, 1881. Contract entered into this day, at Dodge City, Kansas, by and between L. A. Mosty, party of the first part, and R. A. Houston, party of the second part, to-wit, that L. A. Mosty, party of the first part, hereby agrees to sell and deliver unto R. A. Houston, party of the second part, fifteen hundred dry cows, at fourteen dollars per head. Same to be good, smooth, and merchantable cows, and to range from three (3) to eight (8) years old; and furthermore, L. A. Mosty, party of the first part, agrees to brand said cows with the road brand of R. A. Houston, party of the second part, and to deliver said cows at a point 6 miles west of Lampasas, Texas. Also, L. A. Mosty agrees to deliver and sell to R. A. Houston fifty (50) bulls at fourteen dollars ($14) each, said bulls to be from three (3) to five (5) years old, straight and smooth. L. A. Mosty, party of the first part, acknowledges receipt of fifteen hundred ($1,500) dollars from R. A. Houston, party of the second part, as part payment of herein-mentioned cattle. Furthermore, R. A. Houston, party of the second part, hereby agrees to honor the drafts which may be drawn by L. A. Mosty, party of the first part, to the amount of thirteen thousand five hundred dollars, ($13,500,) interest to be computed at the rate of ten per cent. per annum. L. A. Mosty, party of the first part, hereby agrees to deliver said cattle between the first and fifteenth days of May, 1882. It is further agreed that the balance due upon said cattle shall be paid upon their delivery. In case of failure of L. A. Mosty, party of the first part, to comply with the above conditions and agreements between him and R. A. Houston, L. A. Mosty hereby agrees to forfeit the sum of fifteen hundred dollars, ($1,500,) same to be paid over to R. A. Houston, party of the second part. [Signed] L. A. MOSTY. R. A. HOUSTON. Witnesses: J. W. ORMOND, R. M. WRIGHT." The petition further charged that, at several dates specified, Houston paid to Mosty the sums of money named in said contract, and afterwards, for a valuable consideration, assigned said contract to plaintiffs, and that said McAnulty & Mosty wholly failed and refused to perform said contract. Mosty made default. McAnulty appeared, and by a verified plea denied that he was the partner of Mosty at the date of said contract, or interested in it, or bound for its performance in any respect.

The undisputed evidence shows that McAnulty & Mosty did enter into written articles of partnership on the 17th day of August, 1881. Mosty testified that the partnership had been agreed upon, and was complete, before the 10th day of August, 1881, with the exception that it had not then been reduced to writing. He testified that the articles of partnership between himself and McAnulty, dated the 17th day of August, 1881, drawn up and signed at Kansas City, contained the same terms that the copartnership did that he said was entered into by the same parties on or about the 1st day of August, 1881, at Mobeetie. He also testified that McAnulty was present when the contract with Houston was made, and discussed it with the witness, and that it was closed with his approval. McAnulty testified that all of these statements were untrue.

The vital questions in the cause were the following: First. Were McAnulty and Mosty partners on the 13th day of August 1881? Second. If they were not, was the contract with Houston of that date entered into by Mosty with the consent of McAnulty, and with the view of its becoming the property of the firm when it should be formed; and did the firm, when it was formed, ratify, and receive the benefits of, the contract? The evidence shows that the money paid by Houston was used by the firm of McAnulty & Mosty.

Among others, the court gave the jury the following instructions: "If there was a discussion of a partnership agreement at Mobeetie in July, 1881, between McAnulty and Mosty, with a view of forming a partnership at some future time, and after such discussion, and before the contract of partnership had been actually executed, Mosty entered into the contract sued on with Houston, and if Mosty made the Houston contract, with the knowledge, consent, and advice of McAnulty, as a firm contract, and on account of that firm, and afterwards the firm of McAnulty & Mosty, with the knowledge and consent of McAnulty, used and appropriated the money received from Houston on the contract in their partnership business, then and in such case the defendant McAnulty is liable on the contract in this case." "The liability of the appellee McAnulty principally depends on the question as to whether or not, at the time of making said cattle contract, to-wit, on the 13th day of August, 1881, L. A. Mosty and R. E. McAnulty were partners. If they were, and if said contract was a firm contract and partnership transaction, and intended and made for the use and benefit of such firm of McAnulty & Mosty, then the defendant R. E. McAnulty is bound for any breach thereof, as well as said Mosty, although it may have been signed by Mosty alone." "In order to constitute or form a partnership, there must be a lawful and valid agreement to enter into a partnership, and this agreement or contract mut be executed. A mere understanding or agreement between two or more persons that they will at some future time form or enter into a partnership will not, of itself, constitute a partnership." "After the relation of partnership is once actually established between two or more persons, then, during the time said partnership relation continues to exist, the law will bind each and every one of the partners by the acts and contracts and agreements of every other partner, done in the regular course of such partnership business, and for the benefit of such partnership business." The court charged the jury, without objection, that plaintiffs had in open court "abandoned all right to recover in this cause that may equitably arise by reason of the fact, if it was a fact, that the money that Mosty drew from Houston on the contract, if any, was afterwards used and put into the firm business of McAnulty & Mosty." Appellants complain of the above charges, except the last one, and also of the refusal of the court, at their request, to give the following charges: "If the jury believe from the evidence that, at the time of making the Houston contract, it was understood and agreed between McAnulty & Mosty that such contract should be made by Mosty, and that the same should be a partnership contract when the partnership should be formed between them, and that a partnership was in fact formed between Mosty & McAnulty after making the Houston contract, then the jury are instructed that such contract would be binding on both Mosty & McAnulty as a...

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