Dancy v. Missouri-Kansas-Texas R. Co. of Texas

• Court: Texas Court of Appeals
• Writing for the Court: Pleasants
• Citation: Dancy v. Missouri-Kansas-Texas R. Co. of Texas, 49 S.W.2d 910 (Tex. App. 1932)
• Decision Date: 22 April 1932
• Docket Number: No. 9721.,9721.
• Parties: DANCY v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.

49 S.W.2d 910

DANCY v. MISSOURI-KANSAS-TEXAS R. CO. OF TEXAS.

No. 9721.

Court of Civil Appeals of Texas. Galveston.

April 22, 1932.

Rehearing Denied May 12, 1932.

Error from Harris County Court; Nat H. Davis, Judge.

Action by the Missouri-Kansas-Texas Railroad Company of Texas against R. R. Dancy. Judgment for plaintiff, and defendant brings error.

Affirmed.

Ward & Ward, of Houston, for plaintiff in error.

John T. Maginnis, William M. Ryan, and Baker, Botts, Andrews & Wharton, all of Houston, for defendant in error.

PLEASANTS, C. J.

This suit was brought by the railroad company, hereinafter designated appellee, against R. R. Dancy, hereinafter designated appellant, to recover the value of nine bales of cotton alleged to have been stolen from appellee, and thereafter purchased by appellant from the alleged thief and converted to his use and benefit.

The defendant answered by a general demurrer and special exception, the nature of which need not be stated, since no complaint is made on this appeal of the ruling of the trial court on the demurrer and exception. Defendant further answered by a general denial.

The trial in the court below without a jury resulted in a judgment in favor of appellee for the sum of $891.45.

The evidence sustains the finding that the nine bales of cotton described in appellee's petition were unlawfully taken from its possession as alleged in the petition and sold to appellant, who thereafter disposed of same and received the proceeds thereof.

It is due appellant to say that there is neither allegation nor evidence that he knew when he purchased the cotton, or when he thereafter in the course of his business as a cotton factor sold and shipped it out of the state, that his vendor was not its lawful owner.

Only two material questions are presented in the able brief by counsel for appellant.

The first proposition presented is that, the suit having been brought against appellant individually, and the undisputed evidence showing that, if appellant purchased the alleged stolen cotton, he made such purchase as a member of the firm of R. R. Dancy & Co., which was composed of appellant, R. R. Dancy, Jr., and H. H. Dancy, the judgment against him is without pleading or evidence to support it. Appellee's petition makes no mention of the firm of R. R. Dancy & Co., and only seeks recovery against appellant, R. R. Dancy. The trial court finds: "I find that said R. R. Dancy in purchasing said cotton was acting as a member of the partnership of R. R. Dancy & Company, a partnership composed of R. R. Dancy, R. R. Dancy, Jr., and H. H. Dancy, and that said R. R. Dancy did not purchase any of said cotton except as such partner, and that he engaged in the cotton business solely as a partner in said partnership and not individually."

While the question may not be wholly free from doubt, we think the trial court correctly held that, plaintiff's petition being sufficient to inform appellant of the particular transaction upon which his liability was predicated, and his individual and partnership liability to plaintiff being potentially the same, the pleading and evidence were sufficient to sustain the judgment against him. It seems to us that the question is foreclosed in favor of appellee by the opinions in the cases of Fowler Commission Co. v. Charles Land & Co. (Tex. Com. App.) 248 S. W. 314, 315; High Hardware Co. v. Garlitz (Tex. Civ. App.) 265 S. W. 1059; and Parker Motor Co. v. Hamilton (Tex. Civ. App.) 9 S.W.(2d) 426, 431.

In the case first cited, while the court held that the petition contained allegations sufficient to show that the liability sought to be enforced against the defendant was his individual liability as partner of the firm mentioned in the petition, the opinion goes further and expressly holds that the mention of the partnership was unnecessary to sustain the judgment against the individual member of the firm. The opinion declares that: "All that was necessary in the pleadings was sufficient allegations to apprise him [defendant] of the particular transactions declared upon. * * * The extent of the liability of defendant in error was the same whether sued as an individual or as a member of the partnership, and the petition was sufficient to inform him of the theory under which he was to be held liable. Although the state of facts may have been set out somewhat different, if he had been sued in his capacity as a partner, yet the cause of action would have been the same. * * * Besides, to constitute a variance the difference between pleadings and proof must be such as to mislead or surprise; and the evidence in the case clearly shows that defendant in error was neither deceived nor surprised by the alleged variance. [First Nat.] Bank v. Stephenson, 82 Tex. 435, 18 S. W. 583; Jones v. [S. G.] Davis Motor Car Co. (Tex. Civ. App.) 224 S. W. 701."

In each of the two other cases cited by us the opinion of the court sustains our conclusion, as above expressed, upon this question.

In the High Hardware Co. Case, supra, after quoting from the opinion in the Fowler Commission Co. Case, the court says: "In the light of this holding we think it is immaterial whether Garlitz was sought to be held for an individual debt or for a partnership debt. The result would be the same in either instance."

In the Parker Motor Company Case, supra, the question presented was whether a judgment on a claim against a partnership could be rendered against the individual partners without a pleading; there being in that case an absence of allegations of the individual liability of the member. Upon this question the court held: "The contracts of a partnership are joint as to all the partners and several as to each, and the holder of a claim against the partnership may proceed against one or more of the partners on their several...