Lockhart v. Lytle

• Decision Date: 01 January 1877
• Citation: 47 Tex. 452
• Parties: W. A. LOCKHART v. SAM LYTLE.
• Court: Texas Supreme Court

47 Tex. 452

W. A. LOCKHART

v.SAM LYTLE.

Supreme Court of Texas.

1877.

ERROR from Medina. Tried below before the Hon. J. J. Thornton.

This was a suit brought October 8, 1873, by Lockhart against Sam Lytle, alleging that there had been a partnership between plaintiff and the defendant, in raising sheep, in the county of Bandera, the same being a flock of about five thousand; that the said flock was put into the possession of one Bryce Little, who was to keep them till the expiration of the partnership, the 2d December, 1870; that in July, 1869, Little left the sheep, notifying Lytle of his intention; that Lytle refused to take charge of them, whereupon the plaintiff took them, about the beginning of July, 1869, and carried them to his home in Bexar county; that he spent on the sheep from that time, inclusive of some back bills, till 1st December, 1869, $1,094.56, (for which he gave a bill of particulars,) and that his personal services in taking care of the sheep from July until December 1, 1869, when the sheep were turned over to a receiver, appointed by the court at said Lytle's instance, were worth $100 per month; that all the said outlay was necessary, and the cost reasonable; and that defendant had refused to give said herd of sheep any attention. Judgment was asked for one half the amount so expended, and one half the value of plaintiff's labor for four months, as alleged.

The defendant demurred, and urged by special exception that the petition on its face showed that the cause of action occurred more than two years before the suit was filed.

The exception was sustained, and judgment final rendered for the defendant. Plaintiff, by writ of error, brought up the case for revision.

W. B. Leigh, for plaintiff in error.

Walton, Green & Hill, for defendant in error.

GOULD, ASSOCIATE JUSTICE.

The petition seeks to recover contribution for certain expenditures of money and labor by a partner, for the use of the partnership, without going into a settlement of the partnership accounts; and the authorities are that such a suit cannot be maintained, at least not without showing a special agreement, or a separation of the transaction from partnership accounts. (Collyer on Partnership, sec. 284; Parsons on Partnership, 286; 1 Story's Eq., sec. 664.)

Further, if the petition be held to state a cause of action, it shows an indebtedness accruing more than two years before suit brought, and the exception setting up the defense of limitation was...