George v. Taylor
| Decision Date | 25 April 1881 |
| Docket Number | Case No. 2750. |
| Parties | A. B. GEORGE ET AL. v. NANNIE W. TAYLOR. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Guadalupe. Tried below before the Hon. G. H. Noonan.
and Joseph Zorn, Jr. The judgment is against Moses B. George and Joseph Zorn, and Zorn alone appeals.
Plaintiff alleged that J. E. and M. B. George and L. B. Taylor were partners, trading in mules, and that M. B. George sold eight of the mules to one Alexander for $800, and received in payment therefor Alexander's draft on Phelps, McCulloch & Co., New Orleans, payable to L. B. Taylor, who indorsed the same for purpose of collection, and sent it to his commission merchant in New Orleans to be collected. Payment being refused, the draft, by request of M. B. George, was left with J. B. Hood & Co. The drawees of the draft refused to pay it, being instructed so to do by Alexander (the drawer), because M. B. George had swindled him in the mules, in not delivering the mules he had purchased, and that the mules delivered to him were subject to the order of Taylor and George.
M. B. George, on settlement, or division of the partnership property, took this draft as part of the share of the Georges, and in 1869 sold the draft, while still in the possession of J. B. Hood & Co., to J. Zorn; that, previous to the sale, Zorn said Hood had been instructed by M. B. George to compromise with Alexander by taking back the mules, and that Alexander had, previous to the sale of the draft to Zorn, shipped the mules to Hood as directed; that Hood, by instruction of M. B. George, sold the mules and credited George with the proceeds; that Zorn, in 1870, presented the draft to appellee (L. B. Taylor, her husband having died) for payment, and that she paid on the same $400, and took up the draft, with the intention of proceeding against Alexander on the draft, when she learned that the draft had been paid by Alexander by the return of the mules; charging that Zorn well knew that the draft had been settled, and that he and the Georges colluded together for the purpose of swindling plaintiff; praying for exemplary damages, etc.
The defendants demurred to the petition and pleaded a general denial.
The defendants amended their answer, Zorn denying fraud and collusion, and alleging that he received the draft for a valuable consideration, and that he presented it to plaintiff for payment, and that after much delay, W. M. Rust, plaintiff's agent, paid Zorn $400 on the draft and took it up, he, Zorn, having authority from J. E. George to settle in this way, and the $400 having reimbursed him for what he advanced on the draft.
The Georges alleged that J. E. George and L. B. Taylor were the partners, and M. B. George their agent; that in the division of the partnership effects between Taylor and J. E. George, Taylor took the money on hand and part of the notes, and J. E. George took notes, among which was the Alexander draft, and that it was agreed between Taylor and J. E. George that each should bear his proportion of all loss on the bills and notes; that the mules were sent to New Orleans, and sold by Hood, with the knowledge and consent of Taylor, and that J. B. Hood & Co. held the proceeds for Taylor and J. E. George; that Zorn having advanced $400 on the draft, and Taylor being liable for one-half of the draft, Zorn was instructed to take the half, $400, in settlement; and that M. B. George, to whose credit on the books of J. B. Hood & Co. the proceeds of the mules were placed, gave to W. B. Taylor, agent of plaintiff, an order on J. B. Hood & Co. for one-half the proceeds.
On the 21st of November, 1871, the case was submitted to a jury and plaintiff took a non-suit, and on the 24th of November, three days after the non-suit, filed a motion to reinstate the case.
The case was reinstated over the objections of defendants, both on the ground that the motion was not filed within two days after the rendition of the judgment, and because there was no merit in the application, and defendants took a bill of exceptions thereto.
In December, 1874, plaintiff amended her petition, alleging that George took the Alexander draft at his own risk, and that she paid Zorn the $400, supposing the mules to be then in the possession of Alexander, and that she could be reimbursed out of their value.
Jury waived, and judgment was rendered for plaintiff against M. B. George and Z. Zorn for $546.75.
Zorn alone appealed.
W. E....
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