Sessums v. Henry

• Decision Date: 01 January 1873
• Citation: 38 Tex. 37
• Parties: ALEXANDER SESSUMS ET AL. v. JOHN R. HENRY ET AL.
• Court: Texas Supreme Court

38 Tex. 37

ALEXANDER SESSUMS ET AL.

v.JOHN R. HENRY ET AL.

Supreme Court of Texas.

1873.

1. Where a person acting in the capacity of agent or partner, with full authority from his principal or copartners, in the purchase of property, gives a note or other obligation for the purchase money in his own name, and the property is received for the benefit of all, all will be equally bound as makers of the obligation.

2. Where the petition alleges that the defendant executed through his agent the instrument sued on, though the name of the defendant be not signed thereto, the burden of proof is upon the defendant to show that he did not sign it, or authorize it to be executed, in the absence of a plea of non est factum under oath.

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

Suit was brought by appellees against Brooks, who is charged with having held himself out to them as the principal in the purchase of cotton, and having signed the draft given in part payment of said purchase in his own name. A. Sessums & Co. were also sued as subsequently discovered principals, and charged with the execution of the draft by Brooks as their agent in the terms of the statute. To this defendants filed answer and amended answers, and plea of non est factum by Sessums & Co., not sworn to, and a plea of accord and satisfaction.

The plaintiff introduced the draft with protest attached, and then introduced A. Sessums, one of the firm of A. Sessums & Co., to prove the facts alleged in the petition, charging his firm with being the principals in the transaction, and that Brooks acted as their agent. That they were the principals, that Brooks was their agent, that Brooks' drafts on them were their drafts, that they were bound by them, and only failed to pay this draft because of their failure in business, was stated by Mr. Sessums on the witness stand.

The court below gave the following among other instructions to the jury, viz: “Unless the jury believe from the proof the defendant, S. H. Brooks, did not make the draft sued on in the purchase of cotton for A. Sessums & Co., and was not authorized by said A. Sessums & Co. to buy said cotton, and to draw the draft sued on in settlement for said cotton, the defendants, Sessums & Co., are equally bound on said draft with said Brooks, and the plaintiffs have equal right against all of the defendants herein on said drafts.” Verdict and judgment for plaintiffs.Mills & Tevis, for appellant. The court will notice that Sessums & Co. are no parties to the draft, either as drawers, acceptors, or indorsers, or as guarantors, nor were they alleged to be partners of Brooks; the burden of proof then was on appellees to show affirmatively all their allegations to be true, in order to hold Sessums & Co. It is true appellees charge in the petition that Sessums & Co., by and through Brooks, made and delivered the draft sued on. But we take it that the name of a defendant must in some way be signed to an obligation in order to relieve the plaintiff from the burden of showing by proof that the defendant sued is bound.

The first charge of the court assumed, because so charged in the petition, that Sessums & Co. had executed the draft, and this without proof. The charge threw the burden of proof on Sessums & Co. that they did not sign the draft, either by themselves or by Brooks for them. The judge below thought a plea of non est factum by Sessums & Co. was necessary to cast the burden on appellees.

Instruments are received as evidence without further proof against only those whose names appear thereto in some way, and the suit must be founded in whole or in part on such signed paper. The mere charge in the petition that the draft was signed by A., when in fact it was signed by B., does not make it evidence against A. without further proof of A.'s privity. Pas. Dig. art. 1413. Nor is any affidavit of A. needed, for there is nothing on the face of the draft in the supposed case for A. to deny. Nor did Brooks sign the draft as agent of Sessums & Co., looking to the face of the draft.

In the case of Austin v. Towns (10 Tex. 30), whose note was declared on as having been made by an agent, the court held the agency must be denied under oath, but there the principal's name was signed by the agent for the principal. So in Reid v. Reid, 11 Tex. 592. The instrument was signed “by agent”--the affidavit was held necessary; and in Prince v. Thompson, 21 Tex. 481, the court assumed that the instrument was signed by the defendant because his name appeared to the paper sued on.

But in the case in hand appellees declare against Sessums & Co. upon a written contract to which their names nowhere appear, except as non-accepting drawees of the bill; and we think a general denial merely was fully sufficient to put appellees upon the proof that Brooks did buy the cotton for Sessums & Co., that Brooks was their agent in drawing the bill, that he had the authority to buy the cotton and draw the bill, and this without the necessity of a sworn plea by Sessums & Co. Compton v. Stage Company, 25 Tex. S. 68-70.

Robert G. Street, for appellees. Compton v. The Stage Co. 25 Tex. S. is the only case cited for the position assumed by appellants. We submit with all deference and respect, that the case is ill-considered, and upon this point erroneously adjudged. It cannot but affect all who read it with surprise that so important a question of statutory pleading should have been so adjudged, without reference to the statute itself. We feel no assurance that the application of the statute was recognized by the court. If this case be the law, what becomes of the numerous partnership cases decided by this court on the same? Persons v. Frost & Co. 25 Tex. 129; Drew v. Harrison, 12 Tex. 279;Davis v. Marshall, 25 Tex. 372.

Would the rule be different from that laid down in the cases cited if a copartnership was carried on in the name of one of the partners alone? Yet there is no auxiliary statute to help out the partnership cases--none whatever. Or suppose business carried on by several parties as copartners under the firm name of Richard Roe. Where then is the line of demarkation? Briefly and candidly, the partnership cases must be overruled if Compton v. The Stage Co. is maintained, and to do this, new words must be inserted in the statute and the long established practice disregarded.

The act of drawing a bill by one authorized to do so, is itself acceptance. McKinney v. Bradberry, Dallam, 444.

OGDEN, J.

This suit was instituted against all the appellants upon a draft drawn by S. H. Brooks on Sessums & Co. in favor J. R. Henry, one of the appellees. The petition alleges in substance, that though the draft was executed by Brooks in his individual...