Devine v. Martin

• Citation: 15 Tex. 25
• Parties: JOSEPH DEVINE v. JOHN T. MARTIN.
• Decision Date: 01 January 1855
• Court: Texas Supreme Court

15 Tex. 25

JOSEPH DEVINE

v.JOHN T. MARTIN.

Supreme Court of Texas.

1855.

The assignment of a contract in writing gives the assignee the legal title, under the statute, and he may sue in his own name, although he may be a mere trustee for the benefit of the assignor; not so in case of an account, because not included in the statute; but the owner of an account, acquired by purchase or otherwise, having equitable title, can sue in his own name, on general principles, independent of particular statute. [2 Tex. 351;16 Tex. 549.]

Where it was proved that in 1849 and down to the winter of 1850 and 1851, the defendants were partners, merchandising in San Antonio, Texas, and that one of the defendants purchased the goods mentioned in the account sued on, in New York, in August, 1851, and the jury found for the plaintiff, a question being made on the instructions to the jury, this court said: “It seems clear that whatever those rulings may have been, the jury could not legally have given a different verdict, from the evidence before them; and in such cases, we have repeatedly refused to reverse the judgment, for erroneous rulings, upon the instructions.”

If the defendants were not prepared for trial, they should have moved a continuance; not having done so, they could not make their want of preparation for trial a ground for a new trial. (Both defendants were absent from the county seat at the time of the trial, without expectation that the cause would be tried that week. But the reasonableness of such expectation did not appear from the application.--REPS.)

See this case as to the manner in which it should appear that instructions were given or refused.

Appeal from Bexar. Suit by John T. Martin, assignee of Moulton, Barker & Helfer, against Daniel Devine and Joseph Devine, merchants trading under the style of Daniel Devine & Bro., on an account for goods sold and delivered. The account was dated New York, August 4, 1851. The defendants joined in their answer, denying that Joseph Devine ever was a partner in the firm of Daniel Devine & Bro.; excepting to the suit being brought by the assignee of the account, in his own name; denying all and singular, etc.

The proof was that Daniel Devine purchased the goods, August 4, 1851, in New York, on a credit of six months; that in 1852, the plaintiff “became the owner of the property, notes, stock, accounts, effects and assets of the firm of Moulton, Baker & Helfer, by purchase, or by arrangement with that firm;” that the defendants were merchandising in San Antonio in 1849, and down to the winter of 1850-51, under the style of Daniel Devine & Bro.; witness did not know whether the partnership was dissolved afterwards.

Verdict and judgment for the plaintiff. Motion for new trial, on the ground:

1st. That the verdict was contrary to the law and the evidence.

2d. That the court mistook the law in charging the jury.

3d. That the defendants were taken by surprise, at the trial.

In the transcript there was what purported to be a set of instructions asked by the defendants, as follows:

The defendants ask the court to instruct the jury as follows:

1st. That the general issue and the pleadings put in issue whether or not the defendants were partners at the time of the purchase of the goods. 2d. The sale and delivery of the goods, and to whom, and their value.

3d. The question of the transfer of the account, so as to enable the plaintiff to recover in his own name.

4th. And unless a transfer of the very account in controversy has been proved, to the satisfaction of the jury, they must find for the defendants.

5th. That unless the jury are convinced that the defendants were partners in the goods, they cannot find against both defendants.

6th. The plaintiffs are not entitled to interest.

(Signed by defendants' attorneys.)

Refused.

Filed September 14, 1854.

(Signature of the clerk.)

Then came the following:

The plaintiff asks the court to charge the jury,

1st. A partnership proved to exist is presumed to continue unless the contrary is proved.

2d. The acts of one partner, in the partnership business, binds the entire firm.

3d. An account can be transferred, and suit brought by the equitable owner, and the filing of a suit is notice to the defendant that the plaintiff is owner.

(Signed by plaintiff's attorney.)

Filed September 11, 1854.

(Signature of the clerk.)

In the margin was written “instructions--refused.”

There were no instructions in the transcript, given or refused, except as above.

The ground of surprise was, that Joseph Devine was absent from the state, and Daniel Devine was absent from the city, at the time of the trial, without an expectation on the part of either that the cause would be tried during that week of the term; that the said Daniel Devine could prove positively that the partnership had been dissolved before the purchase of the goods, and that he bought them in his own name and for his own account, as appeared by a duplicate invoice furnished him by Moulton, Barker & Helfer, at the time of the purchase, which was made a part of the application. The above facts were supported by the affidavit of Daniel Devine. The invoice was same as the account sued on, except that the name of Daniel Devine, alone, occurred in place of Daniel Devine & Bro., and an additional item, of insurance, added to the account. There was also an affidavit by defendants' counsel, that he was not aware of the existence of the said invoice, and that the same had been discovered by him since the trial of said cause, and that his client, Joseph Devine, being absent from the state, he was unable to consult with him previous to the trial.

In opposition to the motion for a new trial, the plaintiff's attorney filed an affidavit that he presented the original bill, charged to Devine & Bro., to Daniel Devine, before he brought suit, and that he made no objection to its being charged to the partnership, or to the amount of the bill, but offered to arrange it at a percentage.

Motion overruled. Joseph Devine appealed.

It has some bearing on this case, to state that Constantine W. Buckley, at the time judge of the seventh judicial district, presided at the trial; but it did not appear from anything in the transcript (except so far as it inferentially appeared from the defendant Daniel Devine's affidavit that he had no expectation that the cause would be tried that week) that the defendants were taken by surprise by that circumstance.

Paschal & Stribling, for appellant.

I. The first question presented is, whether, under general assignment of the notes, books and accounts of Moulton, Barker & Helfer to Martin, he could maintain an action in his own name for the recovery of an open account. We admit the assignment in this form to be proved. We do not...