Powell v. Charles Messer's Adm'r

• Decision Date: 01 January 1857
• Citation: 18 Tex. 401
• Parties: SAMUEL G. POWELL AND ANOTHER v. CHARLES MESSER'S ADMINISTRATOR.
• Court: Texas Supreme Court

18 Tex. 401

SAMUEL G. POWELL AND ANOTHER

v.CHARLES MESSER'S ADMINISTRATOR.

Supreme Court of Texas.

1857.

It is the right of a party to have the jury instructed upon the law of the case; but, when this has been done, more cannot be required. Therefore, the court is not required to repeat a principle of law, which has already been given in charge to the jury, though under a different form of expression; and ought not to do so, where such repetition would give undue prominence to the principle, the repetition of which is requested.

Prima facie, the execution of a bill or note in the name of the firm by one partner, binds the whole. The burden, therefore, of proving a presumptive want of authority, and of course fraud (for that necessarily follows), lies upon the co-partners.

According to the American decisions, where the payee of a note against a partnership, sues the partners, and it was proved that the note was given by one of the partners for his private debt, which was known to the payee, it devolves on the payee to prove the acquiescence or consent of the other partners; but, it would seem that according to the English decisions, it devolves on the other partners, in such a case, to prove their want of knowledge, or dissent. 10 Tex. 193; 25 Tex. S. 113.

See the case for evidence which was held sufficient to sustain the verdict for the plaintiff, where the defense was, that the note sued on was given to the plaintiff, by one of the defendants, who were partners, for his individual debt.

Appeal from Wharton. Tried below before the Hon. James H. Bell.

Suit by Charles Messer, commenced February 17th, 1855, against John P. Carson, Samuel G. Powell and Charles W. Coen, late partners trading under the name of Carson & Co., on a note signed Carson & Co., dated March 1st, 1853, for $1,124.28, with interest at ten per cent. from date, payable to plaintiff seven months after date; with a credit of $100, October 20th, 1853. Powell and Coen answered jointly, denying that said note was signed by them or by their authority, and alleging that it was given by Carson for his individual debt to Messer. This answer was supported by affidavit of Powell. The death of plaintiff was suggested, and his administrator made a party.

The evidence was as follows: The plaintiff read the note and indorsement of credit: and then called Jackson Rust, who stated that, at the time of the execution of the note sued on, the firm of Carson & Co. was composed of John P. Carson, Samuel G. Powell and Charles M. Coen, the defendants in this suit; that the firm did business in Wharton as merchants; that Carson resided in Wharton and had the sole management of the business of the firm; that Powell and Coen lived in Matagorda and did business there as merchants in the name of Powell & Coen; that the signature to the note sued on was in the hand-writing of John P. Carson.

The defendants called William B. Wilson, who stated that he saw the note sued on when it was executed; that he was a clerk in the store of Carson & Co.; that when the note was executed, one Brown, who was the book-keeper in the house of Carson & Co., told witness to take notice that Carson was signing the name of the firm to a note given for his individual debt. Carson had previously sold some cattle to Messer. H. Carson and Messer had several settlements, at which time notes were renewed. Messer had procured notes against Carson to an amount larger than the sum he owed Carson for the cattle. At the time the settlement was made between Carson and Messer, which resulted in the execution of the note sued on, Messer's claim against Carson was about nineteen hundred dollars. The amount was reduced by Carson giving a draft on Powell & Coen for about two hundred dollars, and by other small payments. The draft was drawn in the name of Carson & Co., and Powell & Coen paid it. When the note sued on was given for the balance due Messer, an entry was made of the transaction in the books of Carson & Co. Previous settlements between Carson and Messer had not been entered in the books of Carson & Co. John P. Carson and some other person, not Powell & Coen, had formerly done business as merchants in the town of Wharton under the name of Carson & Co.

Plaintiff then called Callaway, who testified that he knew the firm of Carson & Co. in Wharton, and did business with them in 1853; that in 1851 he gave his note to one Tilley for about twenty-three hundred dollars; that Tilley transferred the said note to Messer; that Messer transferred it to Carson & Co.; that Carson & Co. transferred it to William R. Thomas; that he sold his cotton to Carson & Co., and got the means to pay said note.

William B. Wilson was then recalled, who stated that the cotton of Callaway was shipped to R. & D. G. Mills, of Galveston, for Carson's individual account, to meet some drafts that he had drawn in the purchase of some mules. When witness was asked how he knew this, he answered that he had seen no (an?) an account of the cotton from Messrs. R. &. D. G. Mills.

The court charged the jury, without request, as follows:

The jury are instructed that all the partners of a firm are bound by the acts of each of the partners in the course of the partnership business. Where one of several partners executes a promissory note in the name of the partnership, all the partners are bound by the contract, unless it is clearly shown that the note was executed for the individual debt of the partner who executed it. And the proof that the note was made for the individual debt of the partner making it, devolves upon the other partners who disclaim the obligation of the note, and not upon the holder of the note.

The other partners cannot be held bound by the execution of a note by one of the partners for his individual debt, unless they admit the obligation of the contract upon them after it comes to their knowledge.

The following instructions were asked by the defendants and refused:

1st. That if they believe from the evidence that Messer had a claim against Carson individually, and not against Carson & Co., and if they further believe that the note sued on was given by Carson on settlement of such individual liability of Carson, the other members of the firm are not liable for its payment, and it makes no difference that he entered the note in the books of the firm.

2d. That one partner of a mercantile firm has no authority to bind the firm by any transaction not in the regular course of the business of the firm, and has no authority to give the note of the firm for his individual debt; and the party who takes the note of a firm, executed by one of the partners for his individual debt, takes it with notice that the partner is exceeding his authority.

3d. That if they believe from the evidence, that the note sued on was made by Carson to take up an individual debt of Carson to Messer, the other members of the firm are not liable for its payment, unless their consent has been proved.

Verdict and judgment against all the defendants for the amount of the note and interest, less the credit of $100. Motion for new trial overruled, etc.

J. B. & G. A. Jones, for appellants.

G. Quinan, for appellee, cited Doty v. Bates, 11 Johns. 545;1 A. K. Marsh. 39;12 B. Mon. 11;Le Roy v. Johnson, 2 Peters, 197; Foster v. Andrews, 2 Penn. 259; 4 Tex. 259;10 Id. 196; Bradbury v. Williams, Dallam; 2 Hovenden on Frauds, 154; Collyer on Part. 483; Perry v. But and Banks, 14 Geo. 708.

WHEELER, J.

Two grounds are relied on for reversing the judgment: first, that the court erred in refusing instructions asked by the defendants; second, that the verdict was not warranted by the evidence.

The general correctness...