Cavazos v. Cavazos

• Court: Texas Civil Court of Appeals
• Writing for the Court: BARROW
• Citation: Cavazos v. Cavazos, 339 S.W.2d 224 (Tex. Ct. App. 1960)
• Decision Date: 14 September 1960
• Docket Number: No. 13647,13647
• Parties: Primitivo CAVAZOS et al., Appellants, v. Martin CAVAZOS, Administrator, Appellee.

Page 224

339 S.W.2d 224

Primitivo CAVAZOS et al., Appellants, v. Martin CAVAZOS, Administrator, Appellee.

No. 13647.

Court of Civil Appeals of Texas, San Antonio.

Sept. 14, 1960.

Rehearing Denied Oct. 12, 1960.

Ronald Smallwood, Karnes City, for appellants.

Houchins, Anderson, Smith & Null, Victoria, for appellee.

BARROW, Justice.

This is an appeal from a judgment of the District Court of Victoria County based upon a jury verdict in a suit brought by appellants, by way of certiorari under the provisions of Rule 344 et seq., Texas Rules of Civil Procedure, to revise and vacate an order of the Probate Court of said County approving an inventory, appraisement and list of claims filed by Martin Cavazos as Administrator of the Estate of Rafael Cavazos, Deceased. The plaintiffs and defendants, including Martin Cavazos the administrator, are heirs at law of said deceased.

The matter in controversy in this suit is the listing of certain personal property and certain debts by the administrator as partnership property and debts of Rafael Cavazos, deceased, and Martin Cavazos as partners, and as belonging one-half to the estate and one-half to the administrator, Martin Cavazos. The case was submitted to a jury on one special issue and the jury found that a partnership existed between Rafael Cavazos, deceased, and Martin Cavazos.

Appellants, by various points, present three main contentions. First, appellants urge that the court erred in overruling their motion for instructed verdict, because there was no evidence to show an agreement, verbal or written, between Rafael Cavazos and Martin Cavazos to be partners. That contention is overruled.

The evidence shows that from the latter part of the year 1941 until the death of Rafael Cavazos in June, 1956, he and his son, Martin Cavazos, appellee, farmed together as tenants, the Armond May property in Victoria County, under a lease agreement between them jointly as lessees and the landowner as lessor. That such farming was the only job either of them had. That both of them had control over all operations. They jointly purchased farming equipment for the farm, as well as fuel and feed, and jointly incurred living expenses and other expenses for the farm. All these expenses were financed by loans from the Victoria Bank and Trust Company, and to secure the repayment of advances, notes and chattel mortgages on the crops and farming equipment were executed by both Rafael and Martin Cavazos and the loans were paid out of the farming operations.

The law is well settled that in order to establish a partnership a written or oral agreement is not essential. In Freeman v. Huttig Sash & Door Co., 105 Tex. 560, 153 S.W. 122, 125, the Supreme Court stated:

'The law recognizes that partnership is the creature of contract, but it is not essential that parties agree to become partners by name, or that their agreement be an express one. If by implied agreement they assume a relation that the law constitutes a partnership, they become partners in fact.'

See Miller v. Marx, 65 Tex. 131; Stevens & Andrews v. Gainesville Nat. Bank, 62 Tex. 499; Kelley Island Lime & Transport Co. v. Masterson, 100 Tex. 38, 93 S.W. 427. The evidence supports the jury finding that a partnership existed between Rafael and Martin Cavazos.

Appellants contend that the court erred in giving, over their objection, the following definition of the term 'partnership':

'By the term 'partnership' is meant a relationship between two or more persons where there is a...