Middlebrook v. Zapp

• Decision Date: 12 February 1889
• Citation: 10 S.W. 732
• Court: Texas Supreme Court
• Parties: MIDDLEBROOK <I>et al.</I> <I>v.</I> ZAPP <I>et al.</I>

10 S.W. 732

MIDDLEBROOK et al.v.

ZAPP et al.

Supreme Court of Texas.

February 12, 1889.

Appeal from district court, Fayette county.

Phelps & Lane, for appellants. Scott & Levi and W. H. Ledbetter, for appellees.

HENRY, J.

The record in this case discloses that, in the year 1885, I. Middlebrook, R. O. Middlebrook, and Mrs. Julia Meyer, then and now the wife of W. C. Meyer, entered into a written agreement of partnership to buy and sell merchandise in the town of Ellinger, in this state, under the firm name of Middlebrook Bros. Mrs. Meyer contributed one-half of the capital originally invested by the firm, and was to have one-half of the profits. The Middlebrooks were to have the other half. The business was conducted by C. W. Meyer, the husband of Julia Meyer, as an employed clerk or manager, at a monthly salary of $50; and, as retail mercantile establishments usually are, for something over two years, without profit. In the mean time the original stock had been sold and replenished from time to time, the purchases being made for cash, and on time. In August, 1887, Leon & H. Blum caused the sheriff of Fayette county to levy an execution in their favor, and against C. W. Meyer, on a portion of said stock of merchandise valued at about $1,000. The sheriff took actual possession of the goods levied upon, sold them, and paid the proceeds to Leon & H. Blum. This suit was brought by the two Middlebrooks and Mrs. Julia Meyer, joined by C. W. Meyer, the husband, as nominal plaintiff, for damages on account of said levy and sale. After exceptions had been filed by defendants for misjoinder of parties, plaintiffs amended, alleging that I. W. Middlebrook, R. O. Middlebrook, and Mrs. Julia Meyer were partners in business in the town of Ellinger; that C. W. Meyer was in charge of the business as clerk and agent of plaintiffs; that he had no interest in the stock of merchandise; and that the money put into the enterprise by Mrs. Meyer was her separate property. Under the authority of former decisions of this court, it must be held that, notwithstanding the fact that the capital paid into the firm by Mrs. Meyer was her separate property, the stock of goods at the time of the levy belonged to the Middlebrooks and the community estate of herself and husband. Epperson v. Jones, 65 Tex. 425; Smith v. Bailey, 66 Tex. 553, 1 S. W. Rep. 627.

The interest in the partnership held in the name of Mrs. Meyer, being community property, was under the control of her husband, and was subject to be seized and sold for his debts. It does not follow, however, that any portion of the partnership effects were subject to seizure and sale, as was done in this case. Our statutes point out the mode of levying upon the interest of a partner for his individual debt. That mode not having been pursued in this case, and an unwarranted trespass having been committed, the defendants in this suit made themselves liable to the owners of the goods...