Crozier, Rhea & Co. v. Kirker

• Citation: 4 Tex. 252
• Parties: CROZIER, RHEA & CO. v. KIRKER.
• Decision Date: 31 December 1849
• Court: Texas Supreme Court

4 Tex. 252

CROZIER, RHEA & CO.

v.KIRKER.

Supreme Court of Texas.

December Term, 1849.

The act which permits a party to testify in certain cases in his own behalf contemplates that the party proposing to testify shall, in his preliminary examination touching his right to do so, state the fact or facts to which he proposes to testify; and it is a question for the court to decide whether or not he could prove the fact or facts, if true, by other evidence.

Where the defendant, in an appeal from a Justice's Court, offered to testify in his own behalf, and the court directed him to be sworn, and instructed him that he was sworn not to testify to any fact he could prove by any other evidence which was within his power to obtain, and further directed the jury that they should decide whether he swore to any facts which he could prove by any other person, and if so, they should reject so much of his testimony as related to those facts: Held, The proceeding was erroneous.

In negotiable paper the act of one partner binds all, even though he sign his individual name, if it appear on the face of the paper to be on partnership account, and to be intended to have a joint operation.

A charge which assumes a fact to be proved which is not proved is erroneous.

If a person holds himself out as a partner, though in point of fact no partnership exists, he is liable to a creditor who contracts with the firm.

Every partner has an implied authority to bind his copartners by the making of notes and the drawing and accepting of bills for commercial purposes consistent with the object of the partnership; and to rebut this presumption of authority there must be proof of fraud or of a knowledge of the want of authority or of notice.

Appeal from Galveston. The appellants brought suit against J. Lombardo and John Kirker, before a justice of the peace, upon a promissory note in the following words:

+--------------------------------------+
                ¦“$53,20.¦GALVESTON, May, 26th,   1848.¦
                +--------------------------------------+
                

Forty days after date we promise to pay Crozier, Rhea & Co., or order, fifty-three 20-100 dollars; value received.

+------------------------------------+
                ¦(Signed)¦J. LOMBARDO & JOHN KIRKER.”¦
                +------------------------------------+
                

The justice gave judgment for the plaintiffs, and the defendant Kirker appealed to the District Court. The case was tried in the District Court, at the Spring Term, 1849. The defendant Kirker filed in that court an affidavit to the effect that he did not sign the note sued on nor authorize any person to sign it for him. At the trial the defendant Kirker offered to testify, and the plaintiff requested the court to restrain him from testifying to any fact which he could prove by another person. The court directed him to be sworn, and instructed him that he was sworn not to testify to any fact he could prove by any other evidence which it was within his power to obtain. In the progress of the examination the counsel for the plaintiff objected that the witness was proceeding to testify to facts which appeared from other testimony previously given in the case to be within the knowledge of other persons; but the court allowed the witness to proceed, and ruled that the jury should decide whether he swore to any facts which he could prove by any other person; and if so, they should reject so much of his testimony as related to those facts; to which ruling the plaintiff excepted.

It was proved that J. Lombardo and John Kirker were partners in an estab-tablishment in Galveston for the retail of spirituous liquors in the months of March, April, and May, A. D. 1848. Crozier, Rhea & Co. were, during the same period, merchants selling groceries, liquors, &c., in the same place. The note sued on was signed by Lombardo. About the 1st of June, 1848, Lombardo went down westward with an adventure of merchandise, and the defendant Kirker told one of the witnesses at the time that he and Lombardo were in partnership in that adventure also; Lombardo and Kirker, during the same period, purchased a house in partnership; and one witness said everybody knew they were in partnership in the bar-room. Sometimes one would go out and purchase on credit of the partnership, and sometimes the other. In August, 1848, Kirker gave public notice that he would not be responsible for any debts contracted by Lombardo after that time. Lombardo admitted he made the note sued on, and that it was made on the partnership account. Kirker swore that he did not authorize Lombardo to make the note; that it was given for liquors and goods which Lombardo had taken down westward in the adventure spoken of; and that he, Kirker, was not in partnership in that adventure, and had not received any benefit from the goods for which the note was given. Kirker and Lombardo had signed and used the name of J. Lombardo & Co.

The court instructed the jury “that, in order to bind all the partners, the note given in evidence must be signed with the partnership name and style; and that a limited partnership in the bar-room did not authorize either to charge the other for goods not in the nature of the partnership business.”

To this instruction the plaintiff excepted, and asked the court to instruct the jury--

“1st. That the partnership name may consist of the names of the persons composing the firm; and in the absence of proof of a particular name, the names of both, signed by either, would be prima facie binding on both if a partnership be proved.

2d. That if the jury found from the evidence that Lombardo and Kirker were partners, then either could sign the names of both to a promissory note; and it lies upon the one claiming not to be bound to show that the note was not given for partnership purposes, and that the person to whom the note was given knew it or had cause to suspect it.

3d. That if the partnership be proved, and it be proved that one of the partners made the note in the name of both the partners, then the note is evidence of a partnership debt.”

Which last instruction the court gave with this addition: “Unless the jury find from the evidence that it was given for other articles than those of the nature of the partnership business.”

The first and second of these instructions the court refused. The jury returned a verdict for the defendant, upon which the plaintiff moved for a new trial, which was refused. There was judgment for the defendant, and the plaintiffs appealed.

O. C. Hartley, for appellant. The 57th section of the act regulating proceedings in the District Courts (Acts of 1846, p. 363) obviously contemplates that the party shall first make oath that there are certain material facts which he has no other evidence to prove except his own oath; after which he may be sworn touching those facts. And the court, not the jury, is the proper judge whether or not the party in his testimony transcends the privilege allowed him by the statute.

II. The charge given by the judge assumes facts. It assumes that there was a partnership name, and that the partnership was a limited one. Charges should always be given hypothetically. (1 Da. R., 273; 3 A. K. Marsh. R., 86; 1 Tex. R., 342.) The first proposition in the charge is not law in the abstract, and is most particularly not law when applied to this case. (5 Mon. R., 382; 1 Camp. N. P., 384; 3 Kent. Com., 41; Gow on Part., 39; Cowp. R., 814.)

III. There can be no question at all that every charge asked by the plaintiff is in its terms strict law. The proof of the partnership and the making of the note, which appeared upon its face to be intended to have a joint operation, threw the burden upon Kirker of proving some fact which would have negatived the implied authority which one partner has to bind the firm by making their promissory note.

J. B. Jones, for ap...