Raymond v. Mann

• Decision Date: 01 January 1876
• Citation: 45 Tex. 301
• Parties: JAMES H. RAYMOND ET AL. v. B. L. MANN ET AL.
• Court: Texas Supreme Court

45 Tex. 301

JAMES H. RAYMOND ET AL.

v.B. L. MANN ET AL.

Supreme Court of Texas.

1876.

APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

Raymond & Whitis brought suit in the Galveston District Court, 13th February, 1872, against B. L. Mann and H. F. Hall, of New Orleans, Louisiana, and Thomas Caden, of the city of Galveston, alleged to be partners under the firm name B. L. Mann & Co., and alleged that defendants had their principal office in Galveston; that on October 11, 1871, B. L. Mann & Co. had duly authorized one J. Hutchinson, as agent, to purchase hides for them in the city of Austin, Texas, and to draw drafts in payment therefor upon one D. Holden, through, by whom, and in whose name they were then doing business in the city of Houston, Texas; the usual course of business under these arrangements being for Hutchinson to buy hides in Austin, and ship them to Holden, (Holden being in fact B. L. Mann & Co., and their firm name in Houston,) all of which was fully recognized by B. L. Mann & Co., who paid and accepted through Holden all drafts drawn by Hutchinson in payment for hides bought and shipped by him; that on or about October 11, 1871, Hutchinson, in course of his agency, bought a lot of hides in Austin, amounting in value to three hundred dollars in gold; and in order to pay for them, negotiated his draft on Holden with Raymond & Whitis, who were bankers, for that amount, which money was paid for the hides, and, as was usual between the parties, they were shipped to B. L. Mann & Co., who received and retained them; that before the draft could be presented in Houston, Holden died, when B. L. Mann & Co. refused to accept or pay the draft. Plaintiffs insisted that defendants were liable upon the draft, as drawn by their agent in the course of his business upon themselves in the name of Holden.

The defendant Caden pleaded non est factum to the agency of Hutchinson, admitting the partnership, having excepted to the petition because it did not appear why suit had not been brought to the first term after the cause of action had accrued; nor did it appear that the draft had been protested for non-acceptance or non-payment. Suit was dismissed as to Mann and Hall. A jury was waived, and judgment rendered for defendant, and Raymond & Whitis appealed.

The testimony is sufficiently shown in the opinion.

Flournoy, Sherwood & Scott, for appellants, cited Green v. Hill, 4 Tex., 465; 2 Phil. on Ev., 1007, 1008, 1010, and notes, (4th Am. ed.;) 1 Pars. on Notes and Bills, 288; Paschal's Dig., 1562.

No briefs for the appellee came to the hands of the reporters.

IRELAND, ASSOCIATE JUSTICE.

The proof in this case very conclusively shows that Hutchinson was buying hides in the city of Austin, for Mann &...