C. C. Alexander's Ex'rs v. Lewis

• Decision Date: 01 January 1877
• Citation: 47 Tex. 481
• Parties: C. C. ALEXANDER'S EXECUTORS v. CHARLES LEWIS.
• Court: Texas Supreme Court

47 Tex. 481

C. C. ALEXANDER'S EXECUTORS

v.CHARLES LEWIS.

Supreme Court of Texas.

1877.

APPEAL from Lamar. Tried below before the Hon. W. H. Andrews.

This suit was commenced by Charles Lewis, appellee, on the 24th of October, 1866, against Mary A. Alexander, executrix, and Simon B. Allen, Samuel A. Roberts, and John N. Fraley, executors of the last will and testament of C. C. Alexander, deceased, and Josephine Alexander, executrix of A. M. Alexander, deceased, late partners, doing business under the name and style of A. M. & C. C. Alexander, and A. S. Kottwitz and William Cloud, who, with said A. M. Alexander, constituted the firm of A. S. Kottwitz & Co. The suit was upon a draft drawn by said A.M. & C. C. Alexander on said A. M. & C. C. Alexander, dated 2d of May, 1865, and payable to the order of said Charles Lewis sixty days after date, for $8,529.85, and indorsed by said A. S. Kottwitz & Co., who wrote the name of said firm across the face of said draft, and, by an amended petition, filed 27th of December, 1867, W. B. Knox was made a defendant as a partner of said A. M. & C. C. Alexander.

The case was tried by the District Court, on the 31st of August, 1869, when the court sustained the demurrer of the defendants, dismissed the suit, and rendered judgment against plaintiff for costs; from which judgment plaintiff appealed to this court, when the judgment of the District Court was reversed and the cause remanded on the 17th of April, 1871. The case is reported in 34 Tex., 608.

This cause was again tried in the District Court, on the 6th of January, 1872, when judgment was rendered for plaintiff for the sum of $12,971.02, with interest at eight per cent. per annum, and costs of suit against the executrix and executors of C. C. Alexander, and the administrator de bonis non of A. M. Alexander (who was made a party pending suit) and W. B. Knox. The court, being advised that the estate of C. C. Alexander was being administered out of court, ordered that execution be issued against the estate of C. C. Alexander, as well as defendant Knox, and that, as to the estate of A. M. Alexander, the judgment be certified to the District Court, where administration was pending, for observance and payment.

From this judgment the executors of C. C. Alexander appealed.

The facts are stated in the opinion.

W. B. Wright, and Hancock, West & North, for appellants, cited, 1 Greenl. Ev., secs. 462, 463; Gould v. Norfolk Lead Co., 9 Cush., 338;Com. v. Hawkins, 3 Gray, 463;Tucker v. Welsh, 17 Mass., 160;Titus v. Ash, 4 Foster, 319;Cook v. Brown, 34 N. H., 460; Hedge v. Clapp, 22 Conn., 622; Robinson v. Hanley, 31 Vt., 443;Kay v. Fredrigal, 3 Barr, 221; Paschal's Dig., art. 1442; Tarpley v. Poage, 2 Tex., 146;Parr v. Johnston, 15 Tex., 297;Barnett v. Logue, 29 Tex., 289;Compton v. Western Stage Co., 25 Tex. Supp., 67;Stacy v. Ross, 27 Tex., 5;Wells v. Moore, 15 Tex., 522;Lewis v. Alexander, 34 Tex., 608;Kottwitz v. Alexander, 34 Tex., 689;Whitis v. Polk, 36 Tex., 602;Coppell v. Hall, 7 Wall., 543;Hanauer v. Doane, 12 Wall., 342;Thomas v. City of Richmond, 12 Wall., 349;Bishop v. Honey, 34 Tex., 252;Kottwitz v. Alexander, 34 Tex., 689;Texas v. White, 7 Wall., 700; Lightfoot v. Tenant, 1 Bos. and Pull., 551; Langton v. Hughes, 1 Maule and Selwin, 593; Roquemore v. Alloway, 33 Tex., 461;Converse v. Miller, 33 Tex., 216; U. S. v. Gurney, 4 Cr., 341; U. S. v. Linn, 1 How., 104;U. S. v. Beard, 5 McLean, 441; Stephens on Pl., 143, 144; Arrington v. Sneed, 18 Tex., 135; Aubert v. Maze, 2 Bos. and Pull., 371; Booth v. Hodgson, 6 Term, 405; Knowles v. Haughton, 11 Ves., 405; Bartle v. Coleman, 4 Pet., 184;Burwell v. Mandeville, 2 How., 560; Bissett on Part., 83; Troubat on Part., 533; 3 Kent, 58; Cross v. Everts, 28 Tex., 524;Horn v. Lockhart, 17 Wall., 571;Lasere v. Rocherau, 17 Wall., 437;University v. Finch, 18 Wall., 106; The Confederate Note Case, 19 Wall., 558;McQuiddy v. Ware, 20 Wall., 14;U. S. v. Insurance Companies, 22 Wall., 99;Fretz v. Stover, 22 Wall., 198;Mathews v. McStea, 1 Otto, 7.

A. M. Jackson and E. M. Pease, for appellee, cited Jordan v. The State, 10 Tex., 501; Bigham & McCall v. Carr, 21 Tex., 147;Weir v. McGee, 25 Tex. Supp., 32; 1 Greenl. Ev., secs. 113, 462; 2 Cowen and Hill's Notes, 760; Chambers v. Miller, 9 Tex., 237: Kneiss v. Seligman, 8 Barb., (N. Y. R.,) 449; 3 Kent, 27; Story on Part., secs. 84, 86, 139, 196, 201; 2 Greenl. Ev., secs. 481, 484.

ROBERTS, CHIEF JUSTICE.

The principal questions in this case, as it was presented to the jury by the pleadings, and by the evidence applicable to the pleadings, that were held to be good, arise upon the charge of the court, which is as follows, to wit:

“The first charge is: ‘The court instructs you, that, if you believe from the evidence, that A. M. & C. C. Alexander were partners in a cotton enterprise, and that it was agreed between them that, in the event of the death of either of them before said enterprise should be completed, then the survivor should carry it on and complete it the same as if both were living, and that A. M. Alexander, as such survivor, did execute, by his agent, the instrument sued on in fulfillment of said enterprise, then you will find for the plaintiff, against the administrator of A. M. Alexander and the executrix and executors of C. C. Alexander, the amount of this instrument, with interest at eight per cent. per annum from its maturity to date, in dollars and cents.’

The second charge is: ‘If you believe from the evidence, that prior to and at the death of C. C. Alexander, said enterprise did exist, and that A. M. Alexander did in fact continue to execute said enterprise in due course, the same as before, with acquiescence or consent of the executors and executrix of C. C. Alexander, and that said instrument was executed in furtherance of said enterprise, then you will find as directed.’

The sixth charge is: ‘You will find upon all the propositions here submitted to you, according to the general rule in civil causes, that the preponderance of the testimony justifies the jury in finding for the party in whose favor the evidence preponderates.’ 'DD'

The first charge is in accordance with the general current of authority. (Burwell v. Mandeville's Ex'r, 2 How., 576, (U. S. R.;) Troubat on Part., secs. 532, 533; 3 Kent's Comm., note a, p. 64.)

Mr. Parsons seems to regard it as a stipulation in the articles of partnership for the formation of a new partnership, which may or may not be acceded to by the parties concerned, after the death of one of the partners, rather than a continuation of the old partnership. (Pars. on Part., 2d ed., marg. p. 438, 439.)

Justice Story, in the case quoted from 2 Howard, 576, says: “By the general rule of law, every partnership is dissolved by the death of one of the partners. It is true that it is competent for the partners to provide by agreement for the continuance of the partnership after such death; but then it takes place in virtue of such agreement only, as the act of the parties, and not by mere operation of law.” “But then in each case the agreement or authority must be clearly made out, and third persons, having notice of the death, are bound to inquire how far the agreement or authority to continue it extends, and what funds it binds; and if they trust the surviving partner beyond the reach of such agreement or authority or fund, it is their own fault,” &c.

Neither in the pleading nor in the evidence did there seem to be any regard paid to the distinction here taken, as to whether the whole estate of C. C. Alexander in the hands of his executors was made, by the agreement for the continuance of the partnership, responsible for the debts contracted by the surviving partners, or only such of his effects as were embarked in this particular enterprise of transporting cotton to Mexico for sale.

If the responsibility, under the agreement, extended only to the effects put into this enterprise, the remedy should have been to reach such effects, or the proceeds of them in the hands of the executors, and not to obtain a general judgment against them, binding the land and other effects of said estate not embarked in this enterprise. Had there been special exception to the allegation of plaintiff in setting up this agreement for the continuance of the partnership, the court might have required such an amendment as wonld have made it more certain, whether the agreement extended to fixing a responsibility upon all of the effects, or only upon those embraced in the enterprise.

There was no charge given upon this subject, calculated to present any such distinction.

The counsel for the executors asked the court to charge as follows, to wit:

“If you believe from the evidence that C. C. Alexander was dead at the time the draft sued on was executed and delivered to plaintiff, then you will find in favor of the executors of C. C. Alexander, unless the plaintiff has proved, by the clearest and most unambiguous language, showing in the most positive manner an intention on the part of C. C. Alexander to render his general assets liable for debts contracted by said firm of A. M. & C. C. Alexander after his death.”

This charge was designed to raise this distinction on the trial, and have the jury to pass upon it. The rule laid down in the books as to such an agreement is, that being an exception to a general rule in the law of partnership, it must be so certainly expressed in definite terms, as that, upon a fair construction of it, the intention is plainly indicated that the party entering into it did intend to bind his estate generally; otherwise it would be presumed that he intended to bind his effects only embarked in the business of the partnership. (See authorities already cited.)

The allegations in the amended petition concerning the agreement are, that the enterprise for which the partnership was formed, as between the two Alexanders, was an entirety, and that, while it was yet in full force, it was...