Curry v. E. E. Stone Lumber Co.
| Decision Date | 08 December 1948 |
| Docket Number | No. 4604.,4604. |
| Citation | 218 S.W.2d 293 |
| Parties | CURRY v. E. E. STONE LUMBER CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; W. L. Thornton, Judge.
Action by the E. E. Stone Lumber Company against Ira W. Curry for the balance of an indebtedness. Judgment for plaintiff, and defendant appeals.
Affirmed.
E. D. Hurt and Esir Tobolowsky, both of Dallas, for appellant.
T. J. Stovall, of Houston, for appellee.
This was a suit to recover a balance of $6300 of an indebtedness originally owing by the Russell Brokerage Company of Dallas to the J. C. Dobbs Manufacturing Company of Houston, such indebtedness having been assigned to appellee. Trial was to the court, resulting in a judgment against appellant for the amount sued for.
Appellee as plaintiff alleged that the Russell Brokerage Company was a partnership firm composed of Russell G. Holl, Ira W. Curry, J. H. (Pat) Murphy and Eddie Bowlin, and sought judgment against all such parties. However, plaintiff later dismissed as to Bowlin. The judgment was against the firm, and Holl Murphy and Curry, jointly and severally. Curry alone has appealed.
In his answer Curry alleged that the obligation to the J. C. Dobbs Manufacturing Company was created prior to and existed at the time the partnership agreement was entered into between Holl, Murphy and him; that at the time of the assignment of the indebtedness to plaintiff he knew nothing about it, and at no time did he agree to pay any part thereof; that if the assignment was accepted by Holl and Murphy it was without his knowledge. He further alleged that the partnership between Holl, Murphy and him "which consisted of Russell Brokerage Company, Hot Springs Box Company, Wood Fabricating Company and Si-Nif Company was dissolved on January 29, 1945," and he attached and made a part of his answer a copy of the dissolution agreement. His answer was verified.
We shall hereafter refer to the Russell Brokerage Company as the "brokerage company" and to the J. C. Dobbs Manufacturing Company as "Dobbs."
In response to appellant's request the court filed findings of fact which were challenged in the trial court, but are not challenged by any points on this appeal. Such findings, therefore, form the basis of the judgment. Rule 299, Texas Rules of Civil Procedure. For the purposes of this appeal the material findings are in substance that the defendant Curry was a partner in the partnership firm of Russell Brokerage Company from August 6, 1944, to January 29, 1945; that some time in August or September 1944 the brokerage company placed an order with Dobbs for certain kinds of boxes for shipment to the Canada Dry Company, the boxes being purchased from Dobbs by and charged to the brokerage company; that Curry was a partner in the brokerage firm at the time such order was placed and at the time each carload of boxes was shipped for the account of the brokerage company; that at no time did he notify plaintiff or Dobbs that he was withdrawing from the partnership firm of the brokerage company; and that at all material times he was a partner in the brokerage company firm, which consisted of Russell G. Holl, J. H. (Pat) Murphy and Ira W. Curry. The conclusion which is here challenged was that Holl, Murphy and Curry were jointly and severally liable to plaintiff for the indebtedness sued upon.
Appellant has presented 21 points. They are, in substance: Under the undisputed evidence the purchase of the boxes by the brokerage company was beyond the scope of the partnership business and appellant had nothing to do with such purchase and same was not binding on the firm or him, and the court erred in concluding he was liable therefor, since such conclusion was not authorized by the pleadings or proof; the court erred in refusing to permit defendant Curry to file a trial amendment setting up that the partnership between Curry, Holl and Murphy was for the sole purpose of producing boxes and carrying on a brokerage business to sell such boxes or boxes produced by Curry, and a patent medicine known as "Si-Nif" which was owned by Curry; and the court erred in refusing to make additional findings of fact as requested, and in refusing to hold that a novation was effected on March 25, 1945, by an agreement between plaintiff and Holl and Murphy, whereby Curry was released of any liability.
As an abstract proposition of law it may be conceded that a member of a partnership is not bound by the acts of his co-partners in which he does not participate, where such acts are not within the scope of the partnership business, and the party dealing with the firm in no way relies on the fact that such member is a partner thereof. The trouble with this proposition, which is embraced in appellant's points, is that it has no application under the record here. Since the trial court's findings are not challenged by any point on this appeal, we must accept them. One of the requested findings which was refused was that the dealings of defendants Murphy and Holl with Dobbs and plaintiff were not within the scope of the partnership formed by defendants Murphy, Holl and Curry on August 6, 1944. In passing on this requested finding the court could properly consider admissions contained in defendant Curry's verified pleading, as well as the evidence. As heretofore stated, in his answer Curry alleged that the partnership consisted of the Russell Brokerage Company, Hot Springs Box Company, Wood Fabricating Company and Si-Nif Company. These were four distinct enterprises which according to the allegation were embraced in the partnership business. The dissolution agreement which was attached to Curry's answer and made a part thereof specifies that Curry should take that part of the partnership business known as the Si-Nif Company, and that Holl and Murphy should take that part known at Hot Springs Box Company, Russell Brokerage Company and Wood Fabricating Company. Curry was to get the Si-Nif Company free of all partnership debts and...
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