Hoxie v. Farmers' & Mechanics' Nat. Bank

• Citation: 49 S.W. 637
• Parties: HOXIE v. FARMERS' & MECHANICS' NAT. BANK OF FT. WORTH et al.
• Decision Date: 18 February 1899
• Court: Court of Appeals of Texas

49 S.W. 637

HOXIE v. FARMERS' & MECHANICS' NAT. BANK OF FT. WORTH et al.

Court of Civil Appeals of Texas.

February 18, 1899.

Appeal from district court, Tarrant county; W. D. Harris, Judge.

Action by the Farmers' & Mechanics' National Bank of Ft. Worth against Mary J. Hoxie, executrix of John R. Hoxie, deceased, and others. From a judgment in favor of plaintiff against the executrix alone, she appeals. Affirmed.

Hogsett & Orrick, for appellant. W. D. Williams, J. B. Davies, and Humphreys & McLean, for appellees.

STEPHENS, J.

The appellee bank sued appellant, as the executrix of John R. Hoxie, deceased, and C. H. Silliman, M. C. Hurley, J. P. Smith, R. A. Rogers, S. D. Rainey, Jr., R. H. Sellers, and others, upon two negotiable promissory notes,—one in the sum of $500, dated November 3, 1890, payable to the order of S. D. Rainey, Jr., cashier of the Farmers' & Mechanics' National Bank of Ft. Worth, Tex., signed, "Hurley, Silliman & Co., by R. H. Sellers, Agent," and the other in the sum of $1,338.28, dated December 31, 1890, payable and signed in the same manner. The bank recovered a judgment against appellant, but failed to recover against the other parties sued. From that judgment the pending appeal of Mrs. Hoxie, the executrix, was the only appeal taken.

The bank sought to hold the several parties sued as partners, alleging, substantially, that on November 1, 1890, they undertook to form a private corporation for the purpose of engaging in the business of buying, selling, and owning lands in Texas, for profit, and undertook to purchase a charter, so soon as one could be obtained, authorizing the transaction of such business, and agreed each to take a given amount of the capital stock in the company; that in order to take advantage of the opportunity then presented of purchasing lands at a bargain, without waiting until a charter could be obtained, it was further agreed that R. H. Sellers (one of them) should proceed at once, as their agent, without waiting for the charter, to purchase certain lands and options on lands for the company, which Sellers proceeded to do, and that in pursuance of this undertaking Sellers borrowed the money represented in the notes at the request of his associates, for the purpose of paying for the lands and the incidental expenses, and that the money was so expended, "Hurley, Silliman & Co." being adopted as the partnership name in the borrowing and disbursement of this money; and that, in signing said name to the notes in question, Sellers intended to designate and include all of the parties concerned in the undertaking. The petition further alleged that no charter was ever obtained, and that no money was ever paid into the concern, and that the parties had failed to pay the notes at maturity; charging expressly, and by the facts alleged, both a joint and a several liability. The bank further alleged that, if mistaken in the view that they were liable as partners, the money had been borrowed and the notes executed by Sellers at the instance and request of each of the other parties, and that Sellers was their authorized agent in the transaction; praying to recover the full amount of the notes from all the defendants, but, if it should be found that less than all had entered into the agreement and become liable, for judgment against such as were liable. The answer of Sellers denied the execution of the notes in the manner alleged, and charged that the money had been borrowed and the notes executed under the direction of John R. Hoxie, and with the intention of binding him only, and that the bank had taken the notes with that understanding. This answer, which was sworn to, contained an express denial of the execution of the notes on behalf of Sellers, as well as a denial of the partnership. The verified answers of the other defendants were of like import; denying the authority of Sellers to execute the notes, and denying the alleged partnership. Mrs. Hoxie, the widow and executrix of John R. Hoxie, deceased, answered by general denial only, and without any sworn plea. No recovery, as the pleadings stood when the case was tried, was sought against her by any of the other defendants; nor did she seek to adjudicate any right or claim she might have against them. The court instructed a verdict against her upon the ground that the evidence showed her to be liable, but the issues made by the answers of the other defendants were submitted to the jury, who returned a verdict in their favor.

Since appellant filed only a general denial, the introduction of the notes in evidence,...