Hengy v. Hengy

• Decision Date: 11 December 1912
• Citation: 151 S.W. 1127
• Parties: HENGY v. HENGY.
• Court: Texas Court of Appeals

151 S.W. 1127

HENGY v. HENGY.

Court of Civil Appeals of Texas. San Antonio.

December 11, 1912.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; E. B. Muse, Judge.

Action by F. J. Hengy against Louis Hengy. From the judgment, plaintiff appeals. Reversed and remanded.

Charles F. Clint, Chilton & Chilton, and Plowman & Plowman, all of Dallas, for appellant. Jeff Word, of Dallas, for appellee.

MOURSUND, J.

On June 9, 1906, F. J. Hengy sued his son, Louis Hengy, for the settlement of a partnership in the junk business, which he alleged had been formed between them on February 14, 1903. Among other matters, he alleged that a lot, known as the Bessard lot, was purchased by the partnership of F. J. Hengy & Son for $2,000, it having been agreed that plaintiff, out of his individual funds, should pay one half of the purchase money, and that the defendant should pay the other half; that plaintiff paid his half ($1,000) out of his individual funds, and defendant paid for the remaining half, first through a loan, and finally out of partnership proceeds, of which latter fact plaintiff remained in ignorance until long after the payment by defendant of his half of said purchase money; that defendant fraudulently, without plaintiff's knowledge, took the deed in his own name; that the lot was used as partnership property, and it was agreed that same should be bought for the partnership. It was further alleged that plaintiff left for Idaho shortly after the formation of the partnership and remained there, with short intervals, until shortly before the bringing of this suit; that about March 22, 1905, while plaintiff was absent in Idaho, defendant also purchased with the proceeds and money of the partnership business a lot known as the Becker lot, for $2,350.25 cash, but, without plaintiff's knowledge and with intent to defraud him, took the title in his own name, of which fact plaintiff remained in ignorance until just before the institution of this suit; that defendant acknowledged said lot to be partnership property. It was further alleged that defendant appropriated to his own use $2,500 paid for portions of said lots in a condemnation proceeding, also other moneys and effects amounting to $9,045, and collected $1,587.97 on account of the partnership, which he did not account for, also $1,350 rent for part of the Bessard lot and $1,441 rent for part of the Becker lot. He further alleged that there was on hand a stock of junk worth $750 and a deposit in the National Bank of Commerce of $5,275.94. Plaintiff set out the sums claimed by him, prayed for settlement of the partnership's affairs, that he recover judgment for the sums sued for, and that his partnership interest in the two lots be awarded him.

Defendant denied the partnership as set up in plaintiff's petition, alleging that he was by his father associated with him in the junk business in July, 1895, without any agreement as to terms of the partnership, and about May 1, 1899, they agreed on the terms of the partnership which terms were set out, but are not necessary to be mentioned here; that on August 27, 1900, plaintiff's wife sued for divorce and partition of community property, making defendant a party to the suit; that about March, 1902, plaintiff caused an accounting to be had in said suit between himself and defendant in regard to the firm property, in which it was determined that the assets consisted of $2,471.62, of which plaintiff was entitled to $836.16, and defendant to $1,635.46; that said judgment determined the existence of a partnership between them. He further alleged the various amounts paid in, profits made, amounts paid out, etc., and claimed the two lots as his exclusive property, alleging they were paid for with his own money.

Plaintiff filed supplemental petition, in which, after denying the partnership as alleged by defendant, and other allegations, he pleaded that the judgment in the divorce suit was an accommodation judgment; that, at the solicitation of defendant and in pursuance of his advice to the effect that it was necessary in order to keep the business from being destroyed by reason of Mrs. Hengy's suit, he agreed that defendant should claim to be a partner; that in order to clear up said judgment in the divorce suit he paid defendant $500 about October, 1902, in full and final settlement of the supposed partnership, interest, and judgment.

The trial resulted in a verdict and judgment awarding defendant the two lots and $836.39 of the money in the National Bank of Commerce, and plaintiff $3,699.55 of said money.

The first assignment of error is as follows: "The court erred, at the instance of appellee, in charging the jury, in relation to the Bessard lot, as follows: `You will find by your verdict that this lot is the property of the defendant, unless you believe from the evidence that the plaintiff paid with his individual money one half of the purchase money, in which event you will find by your verdict that plaintiff owns an undivided one half interest of said lot, and the defendant the other half' —in that, as disclosed by the evidence, plaintiff did not contend that he paid out of his individual funds one-half of the purchase money of said lot, but that said lot was bought with the partnership funds of F. J. Hengy & Son, for partnership purposes, and was necessary to be used by said partnership in the conduct of its business, and was so used, and in that although appellant did contend that he paid out, out of his individual funds, one-half of the purchase money of said lot, and the jury may have believed to the contrary, yet, if appellant's one-half of the purchase money of said lot or appellee's one-half thereof, or the whole thereof, was paid out of the partnership funds, and said lot bought and used for partnership purposes, as the great preponderance of the testimony in this case shows, still, under said charge, the jury would nevertheless be bound to find that said lot belonged to the appellee, as will more fully appear from the court's charge and the pleading and evidence in this case." The proposition made under the assignment is as follows: "The court erred in instructing the jury that they will find that the Bessard lot (lot 5) is the property of defendant, unless they believe from the evidence that the plaintiff paid with his individual money one-half the purchase money."

In the treatment of this assignment we are not favored with any clear statement of what appellant thinks should have been charged by the court. The issues made by the pleadings, if supported by evidence, should be submitted. In this case plaintiff's allegations are rather contradictory in so far as they relate to the Bessard lot. He alleges that said lot was purchased by F. J. Hengy & Son, "it having been agreed that plaintiff, out of his individual funds, should pay one half the purchase money for said lot, and that defendant, by loan or otherwise, should pay for the other half of said lot, and plaintiff paid his one half thereof, or $1,000, out of his individual funds, and the defendant paid for the remaining half thereof, $1,000, first through a loan, and finally out of the proceeds of said partnership and money belonging to said partnership." He further alleged that he remained in ignorance of the latter fact until long after defendant paid his half of the purchase money, and also of the fact that defendant took the deed in his own name instead of that of F. J. Hengy & Son, or to plaintiff and defendant, as it was agreed it should be, and that said act was fraudulent. He further alleged that it was agreed that said lot should become partnership property and be used as such, and that it was in fact treated as partnership property by defendant until just before the filing of the suit. At one place he alleged he was the owner of three-fourths of the lot, and at another that it became partnership assets. Defendant denied that the lot was purchased with the money of F. J. Hengy or the firm of F. J. Hengy & Son, or for the partnership, and claimed same as his individual property. Plaintiff testified positively that each paid his half of the purchase price of the lot, and that the partnership afterwards paid each of them back. The deed to the lot was delivered and recorded on January 17, 1903. Plaintiff alleged and testified that no partnership existed at that time, but that same was formed on February 14, 1903.

The fact that defendant used firm funds to pay a debt incurred by him to secure money to pay for half the lot would not give the partnership any claim upon the lot, and under plaintiff's pleading the court was correct in assuming that under any theory which might be advanced defendant was at least entitled to a half interest in the lot.

Now, as to the other half, each of the parties claimed he paid for it out of his individual means. The legal title being in defendant, the court was correct in placing the burden of proof on plaintiff to ingraft a trust upon such title. Baylor v. Hopf, 81 Tex. 641, 17 S. W. 230.

The charge precluded plaintiff from recovering unless the jury found he had paid half of the purchase money individually. Appellant argues that the allegation that plaintiff paid half of the purchase money out of his individual property was an unnecessary allegation, and that the real issue was whether the property was bought for the partnership, and whether the deed was to be taken in the partnership name and the property used for partnership purposes, and that whatever money defendant invested he would be entitled to recover from the firm upon an accounting.

Plaintiff having made the specific issue and testified that he paid half the purchase money individually, we fail to see how the court could ignore such issue without subjecting the charge to just criticism. Had he instructed the jury to find for defendant unless they found that an agreement had been made to buy the property for the...