Davis v. Willis

• Decision Date: 01 January 1877
• Parties: WILLIAM DAVIS ET AL. v. J. P. WILLIS ET AL.
• Court: Texas Supreme Court

47 Tex. 154

WILLIAM DAVIS ET AL.

v.J. P. WILLIS ET AL.

Supreme Court of Texas.

1877.

APPEAL from Robertson. Tried below before the Hon. John B. Rector.

P. J. Willis et al. brought suit against William Davis and James S. Hanna, upon two promissory notes; one for the sum of $250, bearing date the 6th of November, A. D. 1860, and the other for $2,150, dated June 6, 1861. Each of said notes was signed by the firm name of Davis, Calvert, Hanna & Hardy. The items of indebtedness of the firm were set out in the petition, for which the notes were executed, but recovery was not sought on said account, the same being barred by the law of limitation. The action was brought on the notes, and the recovery was had on the notes, with interest to date of the judgment.

The petition set out the names of the parties who composed the firm of Davis, Calvert, Hanna & Hardy, but did not join Hardy, one of said partners, nor the representatives of Robert Calvert, deceased, but was against Davis and Hanna, and sought to recover from them the amount of said notes.

Davis and Hanna answered by pleas of non-joinder of necessary parties defendants, denying that Hardy was dead, but alleging that he still lived in Brazos county; and further, non est factum as to the last-mentioned note, and denying existence of the partnership at the date of its execution. The evidence was, that the firm name was signed to the note after the dissolution of the firm, by Robert Calvert, deceased, and without special authority being shown from the appellants.

The verdict was for the plaintiff on both of said notes, and the court rendered thereon judgment against Davis and Hanna, from which they appealed.

The court, amongst other instructions to the jury, on the trial below, gave the following, viz: “At the dissolution of a partnership, the members thereof cannot create obligations which will bind the firm, or change the character or form of those already existing, but it devolves upon them to give actual notice to those with whom such firm has been dealing; and any act, done within the scope of the partnership, by one of the members, after its dissolution and before actual notice to those with whom such firm has been dealing, is binding upon all the members of such firm.”

Davis & Beall, for appellant.--The notes sued on are by their very terms joint, and not several obligations; and we insist that all of the joint obligors are necessary parties to the suit. (See 2 Strange, 1146; 11 Vt., 290;3 Vt., 160; Dallam, 453; 16 Tex., 408; 1 Daniel, 269.)

Can a suit be maintained against a partnership without making all the copartners defendants, whose names are set forth in the plaintiff's petition? We think not, and respectfully refer the court to the following authorities: Parsons on Part., 492; Story on Part., secs. 221, 449; Collyer on Part., sec. 391 and note; 1 Dan. Ch. Pr., 267-269, 4th ed.; Story's Eq. Prac., secs. 166, 167, 168.

In the case of Fuller v. Benjamin, 23 Maine, 255, it was held, that in equity all the members of the partnership must be made parties in the bill, or it cannot be sustained. In Page v. Brant, 18 Ill., 37, it is held, that when a plea sets forth the names of other persons as being partners with the defendants, and such plea is proved, no recovery can be had against the parties sued. In the case of Harris v. Schultz, 40 Barb., 316, the court held that where partners sell property of another on account, and fail to pay over the purchase-money, the suit for the money must be brought against all the partners, as it was founded upon contract. In the case at bar, the proof shows that the partnership of Davis, Calvert, Hanna & Hardy existed for the purpose of carrying out a contract for the construction of earthworks on the Houston and Texas Central Railroad, and we submit, as joint obligors and partners under such contract, they could not have been sued separately as individuals, nor could they be sued separately on a note executed in their firm name. It has been held, that a company formed to construct the West Feliciana Railroad is an ordinary partnership, and all the partners must be sued as defendants. (14 La., 364;15 La., 139, 153;5 R. I., 154.)

Without citation of authorities at greater length from other States, we submit that the question is decisively settled by the case of Speake v. Prewitt, 6 Tex., 258.

It is maintained by the appellees, that this suit lay against each and all of the partners on this obligation; “that their contract, evidenced by the note sued on, was in law and equity joint and several;” and refer to Gaut v. Reed, 24 Tex., 56;Forbes v. Davis, 18 Tex., 274, and Horton v. Wheeler, 17 Tex., 57, and say, “that the last case is decisive of both points; first, that Davis & Hanna could be sued on the note, whether joint or several, and that it was not necessary to join Hardy with them.”

In the eighth assignment, we say, “The court erred in permitting an individual judgment to be rendered against the defendants, under the pleadings in said cause.”

In support of this proposition, we refer to act of fifth of February, 1858. (Paschal's Dig., 376.) As the judgment could only have been sustained against them as partners, they having never executed the notes, nor authorized any one to execute the same for them, the judgment should have been against the partnership, and been enforced against the partnership property. The statute provides expressly, that where only some of the partners are served, “the judgment rendered in such case shall only be enforced against the partnership property and the separate property of the partner who may have been served.” We insist that if this judgment against Davis and Hanna, being an individual judgment, should be levied upon partnership property, the execution could be properly enjoined by Hardy. It is not against him, nor against the firm of which he is a member, and certainly cannot subject to forced sale, property in which he may have an interest. This being so, it certainly would operate great injustice to suffer this judgment to be enforced against the separate property of the partners, Davis and Hanna, in palpable violation of the spirit and letter of the statute. In Adkins v. Stone, 33 Tex., 439, the court say: “It was error to allow an individual judgment against one of the partners in action against the partnership in the firm name.”

Aycock & Hamman, for appellees.

I. The court did not err in permitting the note for $2,160.23 to be read in evidence. The suit is against Wm. Davis and J. S. Hanna, who were members of the firm of Davis, Calvert, Hanna & Hardy, upon their individual liability to pay the debts of that firm. They pleaded “ non est factum.” This made it necessary to prove the actual execution of the note, as well as such other facts as rendered the defendants liable. But the court could allow each separate fact to be proved separately, and in such order as it pleased, so that facts enough to fix the liability were proved by the plaintiff before he closed his case. That is precisely what was done. Now, there is no law to prevent such a practice. (Greenl. Ev., vol. 1, sec. 51; Rains v. Hood, 23 Tex., 557, 558;Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet., 448;Wood v. United States, 16 Pet., 342.)

II. The court did not err in its general charge. (White v. Tudor, 27 Tex., 584; 2 McL., 458; 2 Pet., 186; Collyer on Part., 62, 310, 311; Story on Part., secs. 160-162; Gow on Part., ch. 5, sec. 2, 248-251.)

We refer the court to the following authorities on the position, that no new trial should be granted because the verdict is not manifestly contrary to the evidence; because it is not without evidence to support it; because it cannot be said, when there is really a conflict in the testimony, that the jury have erred, who are peculiarly judges of the weight of conflicting testimony-- especially if the justice of the case had been reached: Briscoe v. Bronaugh, 1 Tex., 340;Perry v. Robinson, 2 Tex., 490;Legg v. McNeill, 2 Tex., 428;Hall v. Hodge, 2 Tex., 323;Edrington v. Kiger, 4 Tex., 93;Carter v. Carter, 5 Tex., 93;Davidson v. Edgar, 5 Tex., 492;Ables v. Donley, 8 Tex., 331;Chevaillier v. Denson, 8 Tex., 439;Long v. Steiger, 8 Tex., 460;Latham v. Selkirk, 11 Tex., 321;Oliver v. Chapman, 15 Tex., 410;Stewart v. Hamilton, 19 Tex., 96;Montgomery v. Culton, 23 Tex., 156;Anderson v. Anderson, 23 Tex., 639;Baldridge v. Gordon, 24 Tex., 288;Adams v. George, 25 Tex. Supp., 374;Crawford v. French, 25 Tex. Supp., 436;Powell v. Haley, 28 Tex., 53;Swinney v. Booth, 28 Tex., 113;Davis v. Terry, 33 Tex., 426.

MOORE ASSOCIATE JUSTICE.

The plea of non est factum imposed upon the plaintiffs the necessity of proving the execution of the note thus impeached by the defendants, to entitle them to a judgment upon it. But, while it was necessary to prove the due execution of the note by the defendants, or by their authority, the plaintiffs were not restricted by the plea or the practice of the court to a particular order for the introduction of the testimony upon which they relied to prove its execution and establish defendants' liability for its payment. While it evidently seems more methodical, and in stricter accordance with its natural sequence, to introduce evidence tending to show the execution of the note by the defendants, and its obligatory force as to them, before the note is allowed to go to the jury, it is unquestionably within the discretion of the court to permit the introduction of the evidence in a different manner. If the plaintiffs prove all the facts which are requisite to make out their case, the defendants have no right to complain of the order in which the evidence to establish their liability has been presented to the jury. This is merely a matter of practice, and may be regulated and controlled by the court, according to its discretion. And, unless it clearly appears that the order or manner in which the evidence went to the jury, tended in some way to...