Fowler Commission Co. v. Charles Land & Co.
| Decision Date | 28 February 1923 |
| Docket Number | (No. 397-5733.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 248 S.W. 314 |
| Parties | FOWLER COMMISSION CO. v. CHARLES LAND & CO. |
| Court | Texas Supreme Court |
Suit by H. T. Fowler, doing business under the name of the Fowler Commission Company, against Charles Land & Co. From a judgment of the Court of Civil Appeals (234 S. W. 709) affirming a judgment for defendant, plaintiff brings error. Reversed and remanded.
Cooper, Neel & Wright, of Kansas City, Mo., and E. B. Ward, of Corpus Christi, for plaintiff in error.
Graham, Jones & Williams, of Brownsville, for defendant in error.
H. T. Fowler, doing business under the name of Fowler Commission Company, brought this suit in the district court of Nueces county, Tex., against Charles Land. It was alleged that Charles Land sometimes did business in the name of Charles Land & Co., and maintained an office at Laredo, Tex., during the time of the transactions alleged as the basis of the suit. The petition alleged the making of a contract about February 2, 1916, under the terms of which plaintiff sold to the defendant five cars of white corn at an agreed price, which were shipped to defendant, and bills of lading with draft attached were sent through the bank at Corpus Christi. It also alleged the making of another contract about February 19, 1916, for five cars of white corn, at an agreed price, and which were shipped to defendant, the bills of lading with draft attached being sent through the bank at Corpus Christi. It was further alleged that said cars of corn were shipped by the plaintiff to defendant at Laredo, and after same arrived there defendant refused to accept the same or to pay for same, to plaintiff's damage $2,000. There was attached to the petition an exhibit showing substance of the various invoices in favor of plaintiff and against Charles Land & Co. and items of expense incurred in connection with the sale, shipment, and refusal of the corn, which items of expense were sued for as a part of the damages.
Charles Land answered by special plea that he did not make the contracts referred to, and by general demurrer and general denial.
The trial court found that the two contracts were made at the times alleged, and were in all things as alleged in the petition, except that the same were made by plaintiff with Charles Land & Co., a copartnership firm composed of Charles Land and H. L. Huff. That court also found that plaintiff fully complied with the terms of his contract, but that Charles Land & Co. did not, and that plaintiff was damaged in the sum of $1,923.86.
Under these pleadings and findings, the trial court concluded as a matter of law that the suit was brought against Charles Land in his individual capacity and not as a member of the firm of Charles Land & Co.; that Charles Land was not liable in his individual capacity for breach of a contract made between plaintiff and Charles Land & Co., of which Charles Land was a member, and that plaintiff was not entitled to recover anything against Charles Land, for the reason that the pleadings and the proof do not correspond.
On appeal to the Court of Civil Appeals for the Fourth Supreme Judicial District this judgment was affirmed, the case being reported in 234 S. W. 709, under the style of Fowler Commission Co. v. Charles Land Co., which appears to have been the style the case took in the court below. The Supreme Court granted the writ of error because it was thought the pleadings were sufficient to warrant judgment against Charles Land. We think there is no doubt but what this is correct.
In this state, common-law rules have been abolished, and the contracts of a partnership are joint as to all of the partners and several as to each of them. A holder of a claim against a partnership may proceed against any of the partners individually, and it is not necessary to join either of the other partners or the partnership. As between the partners, equity may...
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...14 S.W.2d 132 (no writ history); Bell v. Bell, Tex.Civ.App., 135 S.W.2d 546, (no writ history); Fowler Commission Co. v. Charles Land & Co., Tex.Com.App., 248 S.W. 314. Appellant's 24th point is substantially that the court erred in refusing to give defendant's special requested instruction......
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...one or more of the partners on their several liability or all of the partners on their joint liability. Fowler Commission Co. v. Chas. Land & Co. (Tex. Com. App.) 248 S. W. 314. But, where the action lies on a partnership liability, the plaintiff cannot have a judgment against one or more o......
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...of the partners individually, and it is not necessary to join either the other partners or the partnership. Fowler Commission Co. v. Charles Land & Co. (Tex. Com. App.) 248 S. W. 314; Jameson v. Smith, 19 Tex. Civ. App. 90, 46 S. W. 864; Webb v. Gregory, 49 Tex. Civ. App. 282, 108 S. W. 478......
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Kent v. National Supply Co. of Texas, 998.
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