Lowenstein v. Keller

• Decision Date: 16 June 1898
• Citation: 46 S.W. 878
• Parties: LOWENSTEIN v. KELLER.
• Court: Texas Court of Appeals

Page 878

46 S.W. 878

LOWENSTEIN v. KELLER.

Court of Civil Appeals of Texas.

June 16, 1898.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by Theo. Keller against E. Lowenstein and another. From a judgment for plaintiff, defendant E. Lowenstein appeals. Reversed.

Votaw, Martin & Chester, for appellant. W. P. Hamblin, for appellee.

WILLIAMS, J.

Appellee recovered the judgment from which this appeal is prosecuted against J. Frank and Mrs. E. Lowenstein, as partners, over their sworn pleas denying such partnership. The liability of Frank for the debt sued for is not denied, and the only objection urged to the judgment is that the evidence is insufficient to show the liability of Mrs. Lowenstein as a partner. Prior to the latter part of 1893, A. Lowenstein, then the husband of appellant, and Frank, her son, were partners in the mercantile business under the firm name of J. Frank & Co., and appellee had dealt with them as such. At the time named, A. Lowenstein died, and the business was conducted under the same firm name until September 29, 1896, when Frank, reciting himself to be the sole owner, made a deed of trust of the assets to secure preferred creditors, of whom Mrs. Lowenstein was one. After Lowenstein's death, appellee continued to sell goods to the firm, and at times, when he did so, Mrs. Lowenstein was present in the store; and he testifies that she seemed to approve the purchases made by Frank and the purchasing agent, though he states nothing that she said or did. Appellee introduced the petition in a suit in the name of J. Frank & Co. against a third party, in which it was alleged that J. Frank and E. Lowenstein were the partners composing the firm. The judgment in the same suit contained a like recital. Appellee also offered in evidence a mortgage signed, "J. Frank & Co., per J. Frank," in which it was recited that the firm consisted of J. Frank and E. Lowenstein. These several instruments were admitted merely to impeach Frank, who testified as a witness. This was all of the evidence offered to prove the alleged partnership. On the other hand both Frank and Mrs. Lowenstein testified that when Lowenstein died the firm was heavily indebted, so that there was nothing going to Mrs. Lowenstein out of the business, and that Frank assumed the debts, and continued the business alone; Mrs. Lowenstein never becoming a partner. We think it is very clear that the evidence is insufficient to warrant the finding of the...