Schuster v. Frendenthal

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Schuster v. Frendenthal, 11 S.W. 1051, 74 Tex. 53 (Tex. 1889)
• Decision Date: 17 May 1889
• Parties: SCHUSTER <I>v.</I> FRENDENTHAL <I>et al.</I>

11 S.W. 1051

SCHUSTER

v. FRENDENTHAL et al.

Supreme Court of Texas.

May 17, 1889.

Appeal from district court, El Paso county.

Action by L. B. Frendenthal & Co. against B. Schuster. Judgment on verdict for plaintiffs, and defendant appeals.

J. P. Hague and W. M. Caldwell, for appellant.

GAINES, J.

The main assignment of error in this case is upon the sufficiency of the petition to support the judgment. The suit was brought by appellees against appellant, and a general demurrer to the petition was interposed in the court below, but was not ruled upon by that court. Consequently it is presumed to have been waived. The inquiry then is as to the sufficiency of the petition, the question being raised for the first time in this court. The petition alleges, in substance, that during the early part of the year 1885 L. B. Frendenthal, J. Frendenthal, and defendant, Schuster, were partners doing business at El Paso, Tex., and in Mexico, under the firm name of L. B. Frendenthal & Co., and in Mexico under the firm name of B. Schuster; that on the 13th day of June of that year the firm sold all its property and assets to one S. J. Frendenthal, and that this sale was specially ratified on the 15th of that month by defendant by a written conveyance, by which, for the consideration of $22,862.68, he transferred all of his interest in the assets of the partnership to the party last named. It is further averred that subsequently L. B. Frendenthal, Ph. Frendenthal, and S. J. Frendenthal, plaintiffs herein, formed a new partnership, and that S. J. Frendenthal transferred all the assets of the old firm to the new. It is also alleged that at the time of the transfer by defendant to S. J. Frendenthal, he was indebted to the firm in the sum of $3,743.78 which was paid off in the transaction, and that in addition thereto he was indebted to the firm in the sum of $2,337 in Mexican money for money received and drawn by him belonging to said firm from their branch house in Chihuahua, and charged to him upon the books at that place. A demand and refusal to pay are also charged. It is here insisted that the petition is insufficient, because it is not alleged that the partnership is dissolved, and because an action of debt cannot be maintained by a firm upon an indebtedness of a member to a partnership. If the demurrer to the petition had been insisted upon, it may be that it should have been sustained; but, there having been a verdict in the case, without any action upon the demurrer, we are of opinion that any defect in the allegations has been cured by the verdict. Where there has been a judgment by...