Mitchell v. City Nat. Bank

• Decision Date: 12 January 1929
• Docket Number: (No. 12069.)
• Citation: 14 S.W.2d 909
• Parties: MITCHELL v. CITY NAT. BANK OF WICHITA FALLS.
• Court: Texas Court of Appeals

14 S.W.2d 909

MITCHELL v. CITY NAT. BANK OF WICHITA FALLS.

(No. 12069.)

Court of Civil Appeals of Texas. Fort Worth.

January 12, 1929.

Rehearing Denied February 16, 1929.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Action by the City National Bank of Wichita Falls against W. M. Mitchell and others. From the judgment, named defendant appeals. Affirmed.

Raymond Myers, of Wichita Falls, for appellant.

Bullington, Boone, Humphrey & King and John Q. Humphrey, all of Wichita Falls, for appellee City Nat. Bank.

Bonner, Bonner & Fryer, of Wichita Falls, for appellee Jones.

CONNER, C. J.

As we understand the record in this case, the material question presented is a simple one. Briefly stated, appellee instituted suit against M. L. May, E. W. Jones, and W. M. Mitchell on a note, alleging that W. M. Mitchell and E. W. Jones was a partnership and that M. L. May, W. M Mitchell, and E. W. Jones constituted another partnership; that the partnership of Mitchell, Jones & May, by virtue of operations in the vicinity of Cross Plains, Tex., became in need of $15,000, for which the three partners were jointly and severally liable; that M. L. May applied to plaintiff for a loan of $5,000 to match $5,000 advanced by Mitchell and Jones, respectively; that said loan was made upon the credit of Mitchell & Jones, and a note therefor was executed, the firm name of Mitchell & Jones being placed on said note beneath the signature of M. L. May by E. W. Jones.

There were other allegations not deemed necessary to our conclusion. The defendants M. L. May and E. W. Jones make no complaint of the judgment below, and the state of their pleadings need not be referred to. Appellant Mitchell, however, by a verified answer, pleaded, among other things not necessary to notice, that he had not executed the note or authorized its execution. Upon the conclusion of the evidence the court gave a peremptory instruction to the jury, which answered as directed, and judgment in accord therewith was entered against M. L. May, E. W. Jones, and W. M. Mitchell, with right of recovery in favor of E. W. Jones and W. M. Mitchell over against M. L. May, and Mitchell has appealed.

The undisputed evidence is to the legal effect that W. M. Mitchell and E. W. Jones were partners engaged in leasing and developing oil lands in the vicinity of Wichita Falls, Tex. M. L. May was engaged in a like business in the vicinity of Cross Plains, in Callahan county, Tex. The parties named formed a partnership designated as the partnership of Mitchell, Jones & May, for the purpose of leasing, drilling, and securing the production of minerals in the Cross Plains section. During the prosecution of the business of the partnership last named, it became necessary for the firm of Mitchell, Jones & May to secure additional funds. By agreement between the parties, Mitchell agreed to advance $5,000, and Jones and May likewise severally so agreed. Mitchell and Jones secured and deposited in the plaintiff bank the $10,000 agreed to be advanced by them. May sought to borrow the $5,000 that he agreed to advance from the plaintiff bank, but the bank declined to advance the money upon his signature alone, but did so on the note of May signed by the firm name of Mitchell & Jones, affixed by Jones. Thereupon the bank advanced the money, which was deposited to the credit of Mitchell, Jones & May, and the evidence shows, we think, without any material variation or conflict, that the $15,000 so deposited to the credit of Mitchell, Jones & May was expended in the prosecution of the business of that firm, in the way of paying current and other indebtedness and in the prosecution of their business as drillers, etc.

Such being the state of the evidence, we are of opinion that the court properly gave the peremptory instruction assigned as error here. The case here is not one in which a partnership, like that of Mitchell & Jones, undertook to act as an accommodation surety for an individual, as was May's. We therefore shall not enter into a discussion of the power of a partner, such as Jones, to bind the other members of his firm by signing the firm name to such a negotiable instrument, for it is familiar law that each member of a partnership has, as agent, power to bind all members of his firm for an indebtedness incurred in the prosecution of his firm's business; and this is...