Hatzfeld v. Walsh
| Decision Date | 05 May 1909 |
| Citation | 120 S.W. 525 |
| Parties | HATZFELD v. WALSH. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; Geo. Calhoun, Judge.
Action by W. S. Walsh against Ph. Hatzfeld. Judgment for plaintiff, and defendant appeals. Affirmed.
Clarence Miller, for appellant. Geo. E. Shelley and Warren W. Moore, for appellee.
This suit involves a question of partnership between the parties heretofore conducted under the name of the Austin Candy Manufacturing Company, and was brought by appellee against appellant to recover one-half of the net profits alleged to have arisen from said partnership business during the year 1906. There was a jury trial resulting in a verdict and judgment in behalf of appellee for the sum of $1,338.09, from which this appeal is prosecuted.
Believing that the pleading, as well as the evidence, properly raised the issue of partnership between the parties hereto, we overrule the eighth assignment of error, complaining of the refusal of the court to give appellant's special charge to the effect that there was no issue of partnership in the case.
Appellant requested the following special charge: "The jury are instructed that in determining whether there were any net profits, if they considered that question, they will not take into consideration any increase in the value of the assets of the business which belonged exclusively to defendant." The refusal of this charge is the basis of appellant's tenth assignment of error, wherein it is insisted that, if there was any increase in the value of the assets of the business, under the uncontroverted testimony the same belonged to the defendant. Therefore no part of such increase could be considered as a part of the gross profits, and the evidence having raised such issue, the court should have given said special charge. This charge in our judgment was properly refused first, because there was no evidence in the record showing or tending to show any increase in the value of the real estate for 1906; and, second, because the court in its main charge had already told the jury that the real estate should be excluded from the items of expense to be deducted from the gross profits in arriving at what would be the net profits of said business for said year.
By his eleventh, twelfth, fifteenth, and sixteenth assignments appellant urges that the charge of the court was erroneous, in that it told the jury that in arriving at the net profits of said business no interest should be charged upon the value of the real estate belonging to the defendant and used in said business, because the same was contrary to the pleadings, in this: that the petition alleged that he was to participate in the net profits, and that the same should be ascertained by deducting from the gross profits, among other things, interest on the reasonable amount of the defendant's investment of property used in connection with the business, etc., and hence to eliminate said item would be error. Appellee contends that the charge was not erroneous, because, while the original agreement as pleaded contemplated the allowance to appellant of 8 per cent. interest on the value of the real estate used in the business, this agreement was subsequently changed by the parties, and appellant was thereafter allowed, in accordance therewith, a monthly rental of $200 in lieu of such interest, as shown by the undisputed evidence. This being true, it would have been improper in our judgment for the court, notwithstanding the fact that the original contract as pleaded contemplated that this item should be deducted, still by virtue of the agreement of the parties it was no longer an issue in the case. Hence the court correctly told the jury to disregard the same from the items of expenses to be deducted from the gross profits, by which the net profits would be ascertained. We therefore overrule all of these assignments.
By his thirteenth, fourteenth, seventeenth, and twenty-fourth assignments appellant, in effect, contends that the charge of the court was upon the weight of the evidence, in that it assumed as a fact what...
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