Sanders v. Bush

• Citation: 39 S.W. 203
• Parties: SANDERS v. BUSH et al.
• Decision Date: 13 January 1897
• Court: Texas Court of Appeals

39 S.W. 203

SANDERS v. BUSH et al.

Court of Civil Appeals of Texas.

January 13, 1897.

Appeal from Falls county court; William Shelton, Judge.

Action by Brant Bush and another, partners as Bush & Dunklin, against George E. Sanders From a judgment for plaintiffs, defendant appeals. Reversed.

Rice & Bartlett, for appellant. Richd. I. Munroe and Boyles & Johnson, for appellees.

FISHER, C. J.

On the 6th day of October, 1894, appellees, a mercantile firm composed of Brant Bush and Frank Dunklin, filed their original petition in the county court of Falls county, Tex., and afterwards, on the 17th day of December, 1895, filed their first amended original petition, wherein they sued George E. Sanders on a verified account for goods, wares, and merchandise sold and delivered him; also for items of money loaned him, including an item under date of June 6, 1893, of half of W. D. Tittsworth seven bales of cotton, $103.28; also for cash paid out at appellant's instance and request, and for his use and benefit, including an item of $103.26, paid W. D. Tittsworth on June 1, 1894,—aggregating the sum of $1,087.51, which was reduced by admitted credits to the sum of $772.75, for which amount they sued; plaintiffs having at the commencement of this suit filed bond and affidavit to the effect that appellant "had secreted his property for the purpose of defrauding his creditors," and caused a writ of attachment to be levied on two lots of land in the town of Riesel, Tex., and on several tracts of land in McLennan county, Tex., on which land they sought a foreclosure. The appellant pleaded general and special exceptions, general denial, and other items as counterclaims and set-off to plaintiffs' demand; also a counter affidavit, denying particular items charged in plaintiffs' verified account, including the item of $103.28, one-half W. D. Tittsworth, under date of June 6, 1893. And by way of special answer defendant alleged that the item of $103.28 mentioned in plaintiffs' account, and the item of $103.26 alleged in plaintiffs' amended petition as paid out to W. D. Tittsworth, amounting to $206.57, were liabilities of the firm of Sanders & Dunklin, plaintiffs herein; and that on the 17th day of December, 1893, when defendant sold his interest in said mercantile business to Brant Bush, they, said plaintiffs, agreed and bound themselves in writing to assume all liabilities of the firm of Sanders & Dunklin, including these Tittsworth items, and to release the firm of Sanders &...