Roberts v. Wimberly

• Decision Date: 01 January 1874
• Citation: 41 Tex. 449
• Court: Texas Supreme Court
• Parties: B. W. ROBERTS v. YARBORO & WIMBERLY.

41 Tex. 449

B. W. ROBERTS

v.YARBORO & WIMBERLY.

Supreme Court of Texas.

1874.

APPEAL from Smith. Tried below before the Hon. Z. Norton.

The facts sufficiently appear in the opinion.

John L. Henry, for appellant.

F. M. Hays, for appellee.

GOULD, ASSOCIATE JUSTICE.

The alleged conversion by appellees of five bales of cotton claimed by appellant as his property gave rise to this suit. The defense relied on was that the defendants received the cotton as bailees of one D. D. Wood, who deposited it with them subject to his order. That plaintiff and Wood formed a partnership in 1869, under a written agreement providing that they should share the crop equally, and should settle all of their indebtedness to each other out of the crops. That Wood represented that plaintiff was indebted to him in the sum of four or five hundred dollars, and that the cotton was therefore his; that they took the cotton for the purpose of securing a claim due them by Wood for goods to carry on the partnership firm, and that Wood having paid that claim and demanded the cotton, they had returned it to him in ignorance of plaintiff's asserted right. There was no controversy as to the fact that the five bales were a part of the crop raised under the partnership agreement; but the evidence was conflicting as to the state of open accounts between Wood and Roberts, each claiming a balance. As the case will be reversed for other errors, it is not proposed to comment on the evidence or to express an opinion as to its sufficiency to support the verdict.

Pending the suit, Yarboro, one of the defendants, died, and the court proceeded to trial against Wimberly as surviving partner, without making Yarboro's representatives parties.

On the trial the court refused to allow the plaintiff to testify as to statements and promises alleged to have been made by the deceased; and this ruling is fairly presented for revision by bill of exceptions and assignment of errors.

The statute (Pas. Dig., art. 6826, 6827) is as follows:

“1. In the courts of this State there shall be no excluion of any witness on account of color, nor in civil actions, because he is a party to or interested in the issues tried.”

“2. In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, or any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.”

The executor or administrator of Yarboro was not a party to this suit, and the prohibition, taken literally, does not support the ruling of the court. There is no ambiguity in the wording of the statute, nor can there be said to be any doubt arising out of the language of the law as to the intention of the Legislature in its enactment. “It is not for the court to say, where the language of a statute is clear, that it shall be so construed as to embrace cases because no good reason can be assigned why they were excluded from its provisions.” (Denn v. Reid, 10 Pet. 526, and see Potter's Dwarris on Statutes, 143-146. If, however, we look to the reason of the law, it will be difficult to pronounce that it applies as fully to a surviving partner as it does to executors, administrators, or guardians. It is well suggested in the brief of appellant that the surviving partner is himself interested in the suit, and has a stimulus to activity and vigilance which is ordinarily wanting in administrators and guardians. For aught that appears, the object of the exception is to protect estates and lands, because of the fact that they are represented imperfectly by agents ordinarily appointed by the law.

Even if it were admitted that the reason of the law applies with full force to this case, and the attempt be made to extend the statute by construction, so as to embrace surviving partners, it cannot be accomplished without unsettlingsettled rules of construction. In Tyson v. Britton, 6 Tex., 224, C. J. Hemphill says: “The Legislature has prescribed a general rule, with special disabilities or privileges, and these cannot be enlarged or extended to objects not embraced in the exception by mere implication or from parity of reason.” To the same effect is the language of...