Davies v. Thomson

• Decision Date: 23 January 1899
• Parties: DAVIES et al. v. THOMSON et al.
• Court: Texas Supreme Court

49 S.W. 215

DAVIES et al. v. THOMSON et al.

Supreme Court of Texas.

January 23, 1899.

Certified question from court of civil appeals, Fourth supreme judicial district.

Action by P. W. Thomson and others against Petra Davies and others for the recovery of an interest in certain real estate and personal property. From a judgment for plaintiffs, defendants appealed to the court of civil appeals, which certified a question to the supreme court.

J. R. Sanford, J. M. Goggin, and H. C. Carter, for appellants. Winchester Kelso and Turney & Burges, for appellees.

GAINES, C. J.

The court of civil appeals for the Fourth supreme judicial district has certified to this court the following statement and question:

"In the above styled and numbered cause, pending on appeal in the court of civil appeals of the Fourth supreme judicial district, a question of law arises which the court directs me to certify to your honorable court for determination, which question is as follows:

"The district judge's charge, verdict, and judgment were as follows:

"`Gentlemen of the Jury: In this case, the plaintiffs, claiming to be the sole heirs of Janet E. Thomson, deceased, bring suit against the defendants, who are alleged to be respectively the sole heirs and sole administrator of E. K. Davies, deceased, seeking to recover from the defendants an equal undivided one-half of all the real and personal property held and controlled by E. K. Davies in Maverick county, Texas, at the time of his death, and an undivided one-half of all the increase and gains of said property since the death of said Davies, and an undivided one-half of all the money received for the sales of any of said property since the death of said Davies. Plaintiffs claim that the property sued for is the result of a business arrangement, whereby it is claimed that certain sheep, equal in value to those at the time owned by E. K. Davies, were placed in the possession of the said Davies, with the agreement on his part that all of said property should be united into one fund, and managed by the said Davies for the mutual benefit of himself and the said Janet E. Thomson; the expenses thereof to be equally borne, and the profits equally divided between them. Plaintiffs allege that this arrangement continued from the time it is alleged to have been entered into until the death of E. K. Davies, and claim that they are entitled to an equal undivided one-half of all the real and personal property now in the possession of the defendant John J. Burke, as administrator of the estate of said E. K. Davies, deceased, claiming that said property is the result of said joint enterprise, and the investment of the proceeds thereof, and the court charges the jury as follows: (1) If the jury believes that plaintiffs have proven by a preponderance of the evidence that Janet E. Thomson is dead, and left no will; and that plaintiff Patrick W. Thomson is her surviving husband; and that the plaintiffs Walter, Mary, and Kenneth Thomson are the sole issue of said Janet E. Thomson and Patrick W. Thomson; and that on or about the time alleged in the petition a business arrangement was entered into by the said Janet E. Thomson with one E. K. Davies, or with said Davies by Patrick W. Thomson, acting for said Janet E. Thomson, whereby sheep equal in value to those then owned by E. K. Davies were delivered into the possession of said Davies for the purpose of uniting said sheep with those of the said Davies, and thereafter constituting the same into a joint enterprise or fund, to be managed and controlled by the said Davies, and in which the expenses and losses were to be equally borne and paid by the said Janet E. Thomson and the said Davies, and the profits, gains, and increase thereof, if any, were to be owned and shared equally between the said persons; and that said arrangement, if there was one, was continued by the said Davies continuously from the time it was entered...