Spencer v. Jones

• Decision Date: 13 March 1899
• Citation: 50 S.W. 118
• Parties: SPENCER v. JONES et al.
• Court: Texas Supreme Court

Page 118

50 S.W. 118

SPENCER v. JONES et al.

Supreme Court of Texas.

March 13, 1899.

Error to court of civil appeals of Second supreme judicial district.

Action by M. G. Jones against A. A. Chapman and others. From a judgment for plaintiff rendered in the district court, defendant R. B. Spencer appealed to the court of civil appeals, which affirmed the judgment (47 S. W. 29, 665), and said defendant brings error. Reversed.

Frank & Young, O. S. Lattemore, and Greene, Stewart & Edrington, for plaintiff in error. Martin & George, for defendants in error.

BROWN, J.

Jones sued A. A. Chapman, R. B. Spencer, G. W. Simpson, and William C. Vowell to recover of Simpson, as maker, and Chapman, as indorser, the amount of three negotiable promissory notes executed August 2, 1892, by Simpson, payable to Chapman, for a tract of 105 acres of land, a part of the G. Rockfeller survey, in Erath county, which was conveyed by Chapman to Simpson by deed of even date with the notes; a vendor's lien being retained in the face of the deed. It was sought to subordinate to the lien of the notes sued on a prior lien claimed by R. B. Spencer upon that and other lands in the Rockfeller survey, which latter lien arose out of a sale and conveyance made April 21, 1890, from Z. Bartlett to A. A. Chapman, for 420 acres of the said survey, which included the 105 acres sought to be subjected to the lien in this suit. Vowell was the vendee of Simpson, and made party in order to foreclose the lien as to him. We copy the statement of facts as found by the court of civil appeals, which is as follows: "The conveyance from Bartlett to Chapman was made in pursuance of an agreement between Chapman and Spencer that the title should be taken in the name of Chapman for their joint benefit, it being the agreement that they would divide equally the profits of the venture. Besides a cash payment, five notes of $420 each were executed, secured by a lien on the land. While these notes were outstanding, Chapman conveyed the land, in four several tracts of 105 acres each, to the following persons, respectively: Simpson (G. W.), Hayden, Clardy, and Petty; taking their several notes for the deferred payments in his own name, with liens reserved on the land,—that conveyed to Simpson being the tract involved in this suit. Thereafter, and before the Simpson, Hayden Clardy, and Petty notes had been collected, in the latter part of the year 1892, the evidence tended to show that Chapman and Spencer had a settlement, in which the notes of Simpson and Hayden were allotted to Chapman, and those of Clardy and Petty to Spencer, with the further agreement that Chapman should pay out of the notes allotted to him those held by Bartlett. In the spring following, Chapman sold and assigned, for a valuable consideration, the Simpson and Hayden notes to Jones; falsely representing at the time (and thereby deceiving Jones) that the Bartlett notes had been paid off, and that lien extinguished. The evidence tended further to show that, in the transaction between Chapman and Jones, Chapman promised Jones to redeem these notes in the fall of that year, if Jones should desire him to do so. After Jones acquired these notes, Spencer, who still held the other notes (Chapman having become insolvent), paid off the Bartlett debt, and took an assignment thereof to himself, under which, pending this suit, he became the purchaser at execution sale of the 420 acres under a judgment foreclosing the Bartlett lien." Upon the motion for rehearing the court of civil appeals added the following to its finding of fact: "It is further insisted that we were in error in the conclusion that the evidence did not tend to show a loan by Jones to Chapman, but only a sale from Chapman to Jones. We have concluded to modify this finding, and now hold that the testimony of Jones was such as to raise that issue, but need not decide whether the evidence would have warranted a finding that merely a loan, and not a sale, was made."

The plaintiff in error claims that there is no evidence to support the finding of the court of civil appeals that there was a partnership formed between Spencer and Chapman in the purchase of the land from Bartlett, and its sale for profit. This contention is based upon the following propositions: (1) That there is no evidence to prove the contract of partnership between Spencer and Chapman; (2) that the contract, when proved, does not establish a partnership. We are of opinion that there is evidence sufficient to support the finding of the court of civil appeals, and that this court cannot say, as a matter of law, that the evidence produced does not show that Chapman and Spencer intended to form a partnership in the transaction in question.

Upon the second point the plaintiff in error cites the case of Clark v. Sidway, 142 U. S. 682, 12 Sup. Ct....