M. C. Lee & Co. v. Wilmerding

• Decision Date: 03 November 1882
• Docket Number: Case No. 3222.
• Citation: 57 Tex. 444
• Court: Texas Supreme Court
• Parties: M. C. LEE & CO. v. STOWE & WILMERDING.

57 Tex. 444

M. C. LEE & CO.

v.STOWE & WILMERDING.

Case No. 3222.

Supreme Court of Texas.

Nov. 3, 1882.

APPEAL from Washington. Tried in 1875 before the Hon. I. B. McFarlane.

The plaintiffs, Stowe & Wilmerding, were commission merchants in the city of Galveston. The defendants, M. C. Lee & A. J. Roberson, had carried on a mercantile business in Washington county under the firm name of M. C. Lee & Co., the capital being furnished by Roberson and the business managed by Lee. The plaintiffs claimed that during the winter of 1871-2, at the special instance and request of M. C. Lee & Co., they had guarantied the payment of certain sums of money falling due by that firm to various houses in Galveston, and that they had afterwards paid said sums. They sued to recover the amounts so paid, with interest and commissions for advancing. Lee made no defense. One of the answers filed by Roberson charged that whilst the partnership of M. C. Lee & Co. existed, Lee had remitted to plaintiffs large sums of money and shipped them large quantities of cotton and other articles which should have been placed to the credit of M. C. Lee & Co., but by the fraudulent contrivances of plaintiffs and Lee were placed to the individual credit of the latter. He claimed that all firm indebtedness to plaintiffs had been paid. The plaintiffs had made an exhibit of a letter written in the firm name by Lee, dated April 8, 1872. This letter contains a request that plaintiffs would pay the bills of M. C. Lee & Co., coming due in Galveston, making no reference to any preceding guaranty. An amended petition sought a recovery on the ground of payment at the request of defendants. Roberson denied under oath the authority of Lee to bind him by that letter. It was a contested question of fact on the trial whether the partnership was dissolved in March, 1872, or on April 15th of that year.

The plaintiffs propounded interrogatories to the plaintiff Stowe to prove the guaranty of the various sums of money set out in the petition and their payment as alleged. Defendant Roberson filed a number of cross-interrogatories to the witness concerning the contemporaneous dealings of plaintiffs with M. C. Lee, and demanded an exhibit of the moneys paid to them by Lee, and the cotton, etc., shipped by him to them during the same period. Witness Stowe declined to answer these cross-interrogatories, stating that their dealings with Lee constituted a separate matter. Roberson moved the court to exclude the depositions for the failure and refusal of the witness to answer. The motion was overruled and exception taken. So far as the evidence develops, the guaranties were made verbally, in December, 1871, and January, 1872, and the payments were made in the months of April, May and June, 1872. The additional facts necessary to understand the questions discussed are stated in the opinion. The trial resulted in a judgment in favor of plaintiffs for the amount claimed. Roberson brought the case up by appeal.

Sayles & Bassett, for appellant.

I. The court erred in overruling the objections of the defendant, Roberson, to the depositions of the plaintiff, Stowe, and permitting them to be read in evidence.

Two depositions of W. N. Stowe, one of the plaintiffs, were read in evidence, over the objection of defendant that the witness had failed to answer the cross-interrogatories. This witness testified to the payment of the several items in their account, and that it was made at the request of the defendants. On cross-examination he was asked the following questions, all of which he absolutely refused to answer:

2. Did not Lee ship you considerable amounts of cotton during the fall and winter of 1871 and 1872?

3. Render a statement of all the cotton shipped you by Lee during the above period, and state the net proceeds of the sales thereof, when sold, to whom, and whether for gold or currency.

4. Did not Lee send you considerable sums of money during the said period, and state the date of such remittances, amounts and character of money?

5. Did he not remit you, in draft of Bassett & Bassett, on Ball, Hutchings & Co., about the 15th of January, 1872, the sum of $180, in gold; and afterwards, about the 22d of January, 1872, in draft of same parties, the further sum of $272.35?

6. Did you not receive from him, during the season, other drafts for gold and currency? Render a statement thereof under oath.

7. Did you not collect said drafts?

Stowe's evidence was retaken by plaintiffs; and after he had stated, in answer to cross-interrogatories, that his firm were engaged with Lee in buying cotton in 1871-72, and that he had shipped them cotton and cattle, he was asked to render an account of the cotton and other produce shipped by Lee, and to render a statement of the money paid during the same period, which he declined to do, simply stating that such shipments and payments were not on account of M. C. Lee & Co.

The plaintiff voluntarily placed himself upon the stand as a witness, and testifies so far as he deems important in his own behalf, but flatly refuses to render an account of his transactions with parties concerned in the business of M. C. Lee & Co., and leaves the defendant Roberson, who had no personal knowledge of the business of the firm, utterly without redress. We say that under these circumstances the plaintiffs were not entitled to the benefit before the jury of their ex parte evidence. In Smith v. Griffith, 3 Hill, 333, it was held that the whole deposition of a witness, who had refused to answer a material interrogatory put by the defendant, should be rejected, because the examination was imperfect, onesided, and, in effect, ex parte; and this rule should apply with more force, where the party himself is the witness and was bound upon a simple request to render the accounts asked for.

II. The court erred in overruling the objection of the defendant Roberson to a portion of the answer of M. C. Lee to the first interrogatory.

In relation to his co-defendant, Roberson, Lee stood as any other witness. Bassett v. Garthwaite, 22 Tex., 230. With the interrogatory of plaintiffs as to the existence of the partnership in December and January, which was not denied, it was not necessary to interrogate the witness further on that point. Had the interrogatory shown the purpose of plaintiffs to prove by the witness the date of its dissolution, or rather of its continuance in April, the defendant Roberson might, by cross-interrogatories, have called the attention of witness to facts which would have fixed the date of the actual dissolution in March. Certainly, an answer that a partnership, acknowledged to exist, continued “until April 15, 1872,” is not responsive to the question as to who composed the firm in December and January. But the appellant was practically denied the opportunity of cross-examination, or of testing the accuracy of the witness' memory, by the course pursued. The witness may, and doubtless did, drop into the error as to the dates, by confounding the dissolution of the firm with the notice of dissolution, which was published on the 15th of April.

III. The court erred in instructing the jury “that if the evidence shows that at the request of the defendants, or one of them, either verbally or written, while they were partners, the plaintiffs paid the various sums mentioned, then they are entitled to recover as against both defendants the amount still due”

Shepard & Garrett, for appellees.

I. There was no error in overruling the objections of defendant Roberson to the deposition of the plaintiff, W. N. Stowe.

The accounts of M. C. Lee, M. C. Lee & Co., and of Lee & Powell, were separate and distinct, and not one general account. The defendant Roberson stated in evidence that Lee bought produce on his own account, and that the firm of M. C. Lee & Co. did no business of the kind; also, that the firm of Lee & Powell succeeded that of M. C. Lee & Co. Stowe testified that the accounts were separate and distinct, and so kept. The questions which the plaintiff Stowe declined to answer were not relevant, and therefore not material, and the statements in answer thereto would have tended to confuse and mislead the jury. The answer of defendant Roberson, filed on the eve of trial, charging conspiracy between Lee and plaintiffs, was palpably for the purpose of excluding the testimony of Stowe; but it is wholly unsustained by proof, and had the court had any hesitation about its ruling, that would have been dissipated by the evidence adduced on the trial.

Stowe answered all of the cross-interrogatories complained of in his second deposition, but did not furnish Lee's individual account, for the reason, as he stated, that it had no connection with that of M. C. Lee & Co.

II. The answer of Lee to the interrogatory as to who constituted the firm of M. C. Lee & Co. in the months of December, 1871, and January, 1872, was just such an answer as a person desiring to state the whole truth would have given; and was not calculated to mislead the appellant, who certainly knew the true date of the dissolution; and if he speculated on the chances of Lee's saying nothing about it, and lost, he has no one to blame for it but himself. The answer was responsive to the interrogatory and did not pertain to anything foreign to it.

It was discretionary with the court to permit the answers to the interrogatories objected to as leading to be read. “Indeed, when and under what circumstances a leading question may be put, is a matter resting in the sound discretion of the court, and not a matter which can be assigned for error.” 1 Greenleaf on Ev., 435 ad fin.; citing Moody v. Rowell, 17 Pick., 498;Donnell v. Jones, 13 Ala., 490.

III. But we think that the judgment should be affirmed on the request to pay, both as proven verbally, and by the letter of M. C. Lee & Co. to the plaintiffs.

It was shown conclusively that there was no dissolution until the 15th of April, 1872, a week after...