Drew v. Brothers

• Decision Date: 01 January 1854
• Citation: 12 Tex. 279
• Court: Texas Supreme Court
• Parties: DREW v. HARRISON & BROTHERS.

12 Tex. 279

DREW

v.HARRISON & BROTHERS.

Supreme Court of Texas.

1854.

Where any petition, answer, or other pleading, is founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party or by his author ity, and not alleged therein to be lost or destroyed, (Hart. Dig. Art. 741,) such other party will not be permitted to disprove the execution of such instrument or note in writing, by him or by his authority, unless he deny such execution under oath, in his pleadings; and where a note is charged to have been executed by several as partners, under a firm name, they will not be permitted to disprove the partnership, unless they deny it under oath in their pleadings.

A plea which denies the execution of the note sued on, or the partnership of the defendants who are charged to have executed the same in their partnership name, is a nullity if it be not sworn to, and it is not necessary to except to it.(Note 56.)

This case distinguishable, on principle, from the case of Williams v. Bailes, 9 Tex. R. 63.

Error from Harrison.This is an action on a promissory note.The plaintiff alleges that the defendants are partners trading under the name, firm, and style of G. P. Harrison & Brothers, and that this note was executed by them under the said firm name and style.

William P. Harrison, one of the defendants, is a non-resident.The other defendants, at the return Term, demurred to the petition and pleaded payment and a general denial.At the succeeding Term, (G. P. Harrison having in the mean time departed this life, and the suit having abated as to him,) the remaining defendants pleaded that they were not indebted to plaintiff in manner and form as alleged, and that they were not partners of G. P. Harrison, trading under the name and style of G. P. Harrison & Brothers.

This plea was not supported by affidavit, and it was objected to, at the trial, as inconsistent with the other pleadings, and as not filed in due order; but the objection was overruled.A jury having been waived, the cause was submitted to the Court, and on the evidence, judgment was given for the defendants.S. M. Hyde, for plaintiff in error.The Court below, under the pleadings and evidence, ought to have rendered judgment for the plaintiff.(Hart. Dig. Art. 741.)There was no denial under oath of the partnership, nor of the execution of the note sued on.

D.Field, for defendants in error.But it may not be improper to add that it was the duty of the plaintiff to show who were the members of the firm of G. P. Harrison & Brothers, as the note sued on did not disclose who they were, and as the liability of J. Harrison, W. P. Harrison, and T. Harrison depended upon the fact of their being shown to be members of the firm of G. P. Harrison & Brothers; and as the note sued on did not show which of the brothers were partners, it was a question of fact to be determined by evidence, consequently their plea denying that they were partners raised a question of fact, and was not a plea of non est factum or plea in abatement, therefore not required to be sworn to.

HEMPHILL, CH. J.

The evidence related solely to the fact of partnership, and, so far as it went, it tended strongly to that conclusion; but we apprehend it was insufficient to establish the fact as a basis for judicial action.Where the existence of the partnership is to be deduced from the course of dealing, conduct, and declarations of the parties, one joint transaction will not be sufficient to establish the fact of general partnership, so as to dispense with proof that the particular debt was contracted on the joint account.(Collyer on Partnership, Sec. 769;2 Greenleaf on Ev., Sec. 483.)But the plaintiff in error contends that he was not bound to have introduced any proof of the partnership, inasmuch as the defendants, by their form of pleading, admitted not only the execution of the note, but also the existence of the partnership as charged in the plaintiff's petition.

This position assumes for its basis, that the plea denying partnership not having been sworn to, was a nullity, and should have been disregarded by the Court, and in support of this, reference is made to Art. 741 of the Digest, which declares “that when any petition, answer, or other pleading shall be founded, in whole or in part, on any instrument or note in writing, charged to have been executed by the other party, or by his authority, and not alleged therein to be lost or destroyed, such instrument or note in writing shall be received as evidence without the necessity of proving its execution, unless the party by whom or by...