Loftus v. Ivy
| Decision Date | 11 November 1896 |
| Citation | 37 S.W. 766 |
| Parties | LOFTUS v. IVY et al. |
| Court | Texas Court of Appeals |
Appeal from Harris county court; John G. Tod, Judge.
Action by Ivy & Neff against Thomas F. Loftus. Judgment for plaintiffs, and defendant appeals. Conditionally affirmed.
Henry F. Fisher, for appellant. W. G. Love, for appellees.
Appellant, Loftus, became liable to the firm of Ivy & Neff for certain work done on his building. After refusal to pay, and after suit, he obtained a receipt in full settlement from Neff, one of the partners in the firm of Ivy & Neff. There was a plea of settlement. Ivy, for his firm, replied that, if defendant had paid anything in reference to the claim sued for, such payment had been made to Neff individually, and not to the firm; that such payment and settlement, if any, was made by means of collusion between defendant and Neff, in order to defraud the firm, by which defendant paid Neff a small sum in order to procure a receipt for the claim from Neff, who, as defendant was informed at the time the contract was entered into, had no authority to receive payment for the firm, the plaintiff Ivy being the person having the sole power to collect the money; that such payment and settlement was made secretly, and without Ivy's knowledge; and that, as part of the collusive agreement and settlement, Neff immediately left Houston, and has not since been heard from, and for these reasons the settlement was void as to the partnership. There was an intervener, who claimed a part of the fund, upon which branch of the case there is no complaint of the judgment, provided the defendant be held liable. There was also a garnishment of the fund, as to which no assignments of error are made.
The principle is well settled that a collusive settlement, made with one partner, in fraud of the others, is of no effect against the firm. Stout v. Bank, 69 Tex. 384, 8 S. W. 808. The answer, if sustained by proof, would defeat the settlement that was pleaded. This was the real issue upon which the case went to the jury. We are of opinion that the facts shown by the evidence, aided by legitimate and admissible deductions therefrom, were sufficient to warrant the settlement being condemned as a fraud on the firm. The evidence in cases of this character takes great latitude, and the various circumstances given in evidence were relevant and admissible on such issue. Burnham v. Logan, 88 Tex. 4, 29 S. W. 1067.
It is contended that, inasmuch as the...
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Chien v. Chen
...designed for special circumstances that may occur to make it impractical to join all partners as plaintiffs. See, e.g., Loftus v. Ivy, 14 Tex.Civ.App. 701, 37 S.W. 766 (1896, no writ) (while all partners should join in suit for fraud, the rule does not apply to require joinder of one who ha......
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Johnson v. Tindall
...is unenforceable. Article 3965, Revised Statutes 1911; Rentfro v. Lancaster, 10 Tex. Civ. App. 321, 31 S. W. 229; Loftus v. Ivy, 14 Tex. Civ. App. 701, 37 S. W. 766; Nichols v. Dixon, 85 S. W. Ollie Strode, a witness for plaintiff, testified that he had plaintiff's account for collection an......
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Hein v. John Finnigan Co.
...and, as before intimated, would not have been such had Villegas promised to pay the debt outright." See, also, Loftus v. Ivy, 14 Tex. Civ. App. 701, 37 S. W. 766, wherein it is held that a verbal promise to pay for certain work, if another does not, is within the Cases that have given rise ......