Rahl v. Parlin & Orendorff Co.

• Decision Date: 26 October 1901
• Citation: 64 S.W. 1007
• Parties: RAHL et al. v. PARLIN & ORENDORFF CO.
• Court: Texas Court of Appeals

64 S.W. 1007

RAHL et al. v. PARLIN & ORENDORFF CO.

Court of Civil Appeals of Texas.

October 26, 1901.

Appeal from Dallas county court; E. S. Lauderdale, Judge.

Action by the Parlin & Orendorff Company against John Rahl and others. Judgment for plaintiff, and two of the defendants appeal. Affirmed.

Thompson & Thompson, for appellants. U. F. Short, for appellee.

BOOKHOUT, J.

The Parlin & Orendorff Company, appellee, filed suit in the county court of Dallas county, Tex., on February 21, 1899, against John Rahl, W. M. Holloway, and Will V. Jones, as partners, upon 13 promissory notes executed by Will V. Jones. Appellees alleged that John Rahl, W. M. Holloway, and Will V. Jones at the time of the execution of the notes sued on were partners in trade doing business in the town of Meridian, Bosque county, Tex., under the copartnership name and style of Will V. Jones. Appellees prayed for judgment against all of the defendants as partners. Jones failed to appear and answer. Rahl and Holloway filed separate and independent answers. Each pleaded to the jurisdiction of the court, each denied the partnership under oath, and both pleaded non est factum to the notes sued on. The case was called for trial on February 25, 1901. Defendants Rahl and Holloway moved for a continuance on account of the absence of Holloway, who resided in Bosque county. After hearing the testimony the court held that the testimony established partnership between all of the defendants at the date of the execution of the notes, and instructed the jury to find a verdict for the plaintiff. Under this instruction the jury returned a verdict against the defendants for the sum of $534.30, and the judgment was rendered accordingly. Rahl and Holloway filed a motion for a new trial, which was overruled March 2, 1901, and they both appealed.

1. Appellants' first assignment of error complains of the overruling of their motion for a continuance. The record fails to show any action by the trial court upon this motion. In this condition of the record, we cannot consider this assignment. Philipowski v. Spencer, 63 Tex. 604; Railway Co. v. Mallon, 65 Tex. 115.

2. Under appellants' ninth, tenth, and eleventh assignments of error, which are grouped, the proposition is presented that: "A loan or advance of money to be invested in some business or enterprise, the lender to share in the profits, as or in lieu of interest on such loan, the advance does not constitute a partnership, but is a mere loan on contingent compensation. Nor is it a partnership as to third parties." This proposition presents the controlling question in this case. John Rahl, one of the defendants, testified as follows: "In October or November, 1897, I was in the grocery business at Meridian, Bosque county, Texas. At that time I sold out to one A. N. Tandy. In December, 1897, or in January, 1898, the defendant Will V. Jones came to me and stated that he was out of employment and unable to secure a situation. Jones had before that time clerked for me in the grocery business. He said that he believed he could make a success of the grocery business if I would lend him some money. I had known Jones for a long time. He was a poor boy, and I knew he was honest, and I was willing to help him. Holloway and I agreed, and afterwards loaned Jones $500 each with which to start in business. Jones was to pay this money back at...