Caraway v. Citizens' Nat. Bank

• Decision Date: 18 January 1895
• Parties: CARAWAY v. CITIZENS' NAT. BANK OF WEATHERFORD.
• Court: Texas Court of Appeals

29 S.W. 506

CARAWAY v. CITIZENS' NAT. BANK OF WEATHERFORD.

Court of Civil Appeals of Texas.

January 18, 1895.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Action by the Citizens' National Bank of Weatherford against H. H. Caraway and J. T. Cook. The suit as to J. T. Cook was dismissed. From a judgment for plaintiff, defendant appeals. Affirmed.

T. L. Nugent, for appellant. H. L. Moseley, H. W. Kuteman, and S. W. T. Lanham, for appellee.

Statement of the Case, with Conclusion of Fact.

TARLTON, C. J.

On September 8, 1891, W. A. Cook and J. T. Cook executed, in favor of appellee, a note, payable October 8, 1891, for the sum of $1,500, with interest at the rate of 12 per cent., besides 10 per cent. attorney's fees. W. A. Cook having died, the appellee, as plaintiff, on January 2, 1892, brought this suit against H. H. Caraway, appellant, and against J. T. Cook, to recover the amount evidenced by this note, less $149.68 admitted as a credit by virtue of a payment made October 8, 1891. On May 18, 1893, the suit was dismissed as to J. T. Cook. On May 20, 1893, judgment was had by appellee against the appellant for the sum of $1,777.07, from which this appeal is prosecuted.

We deem it proper to insert the charge of the court, as indicating the character of the pleadings by the parties, and the issues involved, and with a view, also, to the better apprehension of the points raised in several assignments of error hereinafter considered. The charge is as follows: "Gentlemen of the Jury: The plaintiff sues herein on a note charged to have been executed by W. A. Cook, deceased, charging that the said W. A. Cook and the defendant B. H. Caraway were partners in the business, doing business under the firm name of W. A. Cook, and that the note was executed as a partnership note, and on account of the partnership. Plaintiff also alleges and charges that if the defendant and said Cook did not carry on business in the name of W. A. Cook, and if said Cook was not authorized to execute the note in the name of W. A. Cook, defendant is liable for the amount of the note and interest, for the reason, as plaintiff alleges, that the money was obtained by Cook from the plaintiff for the partnership, and that the money was used on account and in furtherance of the partnership business. Plaintiff also alleges and charges that the defendant Caraway authorized the said Cook to borrow the $1,500, and accepted and appropriated it to the use of himself and to said partnership. Plaintiff also alleges that the defendant and said Cook were partners in business, and that they so did business without any partnership name, doing business sometimes in one name and sometimes another. The defendant in his answer denies all the allegations of the plaintiff's petition, and, in addition, specially denies that there was a partnership between himself and Cook at the time of the execution of the note, and that, if there had ever been a partnership between defendant and the said Caraway, the same was dissolved. Defendant also alleges and charges that the attachment sued out in this case was wrongfully sued out and levied upon his cattle, and that defendant was thereby damaged; and you are charged as follows: (1) If you find and believe from the evidence in this cause that, at the time the note here sued on was executed and delivered, the defendant and W. A. Cook were partners in business, and if the firm name of said firm was W. A. Cook, and if you believe the said Cook executed the same on account of said partnership, and as the representative of said firm, the defendant would be liable on said note, and, if you so believe, you will find for the plaintiff the sum you find to be due on said note; or if you believe that, at the time of the execution of the note sued on, the defendant and W. A. Cook were partners in business, and that they as partners had no partnership name, and that the business of said firm was sometimes carried on in one name and sometimes in another, and if you believe that W. A. Cook, acting for and on account of the partnership, borrowed of the plaintiff the money for which the note was given, for the use of said partnership, and if you believe said firm sometimes transacted business in the name of W. A. Cook, and if he was acting within the scope of the partnership, the plaintiff would be entitled to recover of the defendant the sum due on said note. (2) If, from the evidence and the charge given you, you should find the plaintiff liable on the note, he would be entitled to a credit of whatever sum has been paid on the note. The plaintiff cannot recover in this suit if the defendant and W. A. Cook were not partners at the time the note sued on was executed; and, if the partnership was dissolved prior to the time the note was executed, plaintiff cannot recover, unless you find for the plaintiff under special charge No. 2 asked by the plaintiff and given by the court. If W. A. Cook borrowed the money for his individual use and benefit, and not for the use of the partnership (if there was a partnership), the plaintiff cannot recover of the defendant. If you find and believe that the writ of attachment herein sued out was wrongfully sued out and levied upon the cattle of the defendant, and if you believe that by reason of such levy the defendant was damaged as set out in his answer, the defendant would be entitled to recover such actual damages as you find he sustained by reason of such levy. The plaintiff cannot recover of the defendant on account of partnership, unless you find that defendant and W. A. Cook were partners at the time the note sued on was given, and unless you find the style of said partnership was W. A. Cook, and that the money was obtained on account of such partnership, or unless you find they were partners at the time, and that they had no firm name, and that the money was obtained on account and for the use of the partnership. The note being signed `W. A. Cook,'...