Dilley v. Abright

• Decision Date: 29 October 1898
• Citation: 48 S.W. 548
• Parties: DILLEY et al. v. ABRIGHT et al.
• Court: Texas Court of Appeals

48 S.W. 548

DILLEY et al. v. ABRIGHT et al.

Court of Civil Appeals of Texas.

October 29, 1898.

Appeal from Dallas county court; Kenneth Foree, Judge.

George M. Dilley & Son brought suit in the county court against R. W. Abright and W. Illingworth upon an account of $499.12, for goods alleged to have been furnished to Abright and Illingworth by the San Antonio Foundry Company, and also upon an acceptance for the like amount executed by R. W. Abright in favor of the San Antonio Foundry Company. The plaintiffs sued as assignees of the foundry company. Illingworth was sued as being a partner with Abright in the enterprise for which the material was purchased; that is, the erection of certain crematory furnaces in the City of Mexico. The defendants denied the partnership. Abright also pleaded a set-off, one item of which, amounting to $61.05, was for defects in the material furnished. Upon a trial by the court, judgment was rendered against Abright for the amount claimed, after allowing the offset of $61.05. Judgment was rendered in favor of the defendant Illingworth, the court finding, "as a matter of law, that the facts shown did not constitute Illingworth a partner of Abright." The plaintiffs appeal. Reversed.

Holloway & Holloway, for appellants. Russell & Callaway, for appellees.

FINLEY, C. J. (after stating the facts as above).

There is no question as to the correctness of the judgment against Abright which we find it necessary to discuss. He was liable to the plaintiffs for the amount of the account, but he established his offset of $61.05 on account of defects in the material, as pleaded by him, and this sum was properly deducted from the sum for which he was liable to the plaintiffs. The serious question presented is as to the liability of W. Illingworth as a partner with Abright in the particular business or undertaking. There seems to be no controversy as to the facts. Both Abright and Illingworth testify in substantial accord, and upon their evidence depends the issue of partnership. There is no contention that they were held out as partners, and that creditors so regarded them. The proposition is that the evidence shows that they were partners in fact inter se. The trial court held that the evidence did not establish such partnership, and acquitted Illingsworth of all liability upon the debt. Is such holding correct? Abright entered into a contract with the City of Mexico, in his individual name, to erect certain crematory furnaces, for which he was to receive $21,500 in Mexican money. These facts are unquestioned: (1) W. Illingworth furnished to R. W. Abright $4,733.75 for the purpose of constructing certain crematory furnaces under a contract entered into between R. W. Abright and the City of Mexico. (2) As a consideration for this money, Abright agreed to repay the sum advanced, with such interest as Illingworth had to pay for it, it being understood that Illingworth had to borrow it, and it was shown that he did borrow it, and pay 10 per cent. interest thereon. As a further compensation, Abright agreed to pay Illingworth one-third of the net profits arising from the contract, or $2,000. (3) Neither of the parties contemplated that their acts and agreement would create a partnership relation between them. They regarded the transaction as a loan of money.

It is often quite difficult to determine, from the agreements and dealings between...