Willis v. Morrison

• Decision Date: 01 January 1875
• Citation: 44 Tex. 27
• Court: Texas Supreme Court
• Parties: P. J. WILLIS & BRO. v. JNO. H. MORRISON ET AL.

44 Tex. 27

P. J. WILLIS & BRO.

v.JNO. H. MORRISON ET AL.

Supreme Court of Texas.

1875.

APPEAL from Anderson. Tried below before the Hon. M. H. Bonner.

This was an action brought by appellants, P. J. Willis & Bro., against John H. Morrison and H. C. Hunt, as merchant partners, doing business under the firm name of John H. Morrison & Co., on an instrument of writing directed to Double & Wooters, in favor of P. J. Willis & Bro., and signed “John H. Morrison & Co., per T. C. Hooker,” which instrument was partly paid. To recover the balance this suit was brought. The petition alleged that Morrison & Hunt were partners; that Hooker was their agent; that they were liable on the instrument as a firm, and judgment was asked against them for the debt and damages, and for general relief.

Morrison filed general and special exceptions, and a general denial. Hunt filed general and special exceptions, general denial, and a plea of “ non est factum,” denial of partnership, and a denial that Hooker was agent for him, or any firm of which he was a member. Plaintiffs plead subsequent ratification of Hooker's acts by Hunt. The court charged, among other things, that if the jury found for Hunt, under the plea of “ non est factum,” &c., that they must also find for Morrison. The jury returned their verdict, viz: “We, the jury, find for the defendant.” P. J. Willis & Bro. filed a motion for a new trial, and assigned for error that the court erred in its charge to the jury.

Reagan & Greenwood, for appellants.

Jno. Young Gooch, for appellees.

I contend that the court properly charged the jury that if they found for Hunt they must also find for Morrison. The statute requires “a full and clear statement of the cause of action, and such other allegations pertinent to the cause as he, plaintiff, may deem necessary to sustain the suit; and also a full statement of the nature of the relief he requests of the court.” (Paschal's Dig., art. 1427.) A case must be properly stated, and the proof must correspond with the allegation as made. “Facts not alleged, though proven, cannot form the basis of a decree or judgment.” (Hall v. Jackson, 3 Tex., 305.) “Evidence, although admitted without objection, which was not anticipated by proper allegation in the pleadings, should be disregarded.” (Paul v. Perez, 7 Tex., 338.) “A party must recover, if at all, on the identical case on which he has based his right of recovery in stating his cause of action.” (Thompson v. Thompson, 12 Tex., 329.) “A full statement of the nature of the relief requested must be made.” (Paschal's Dig., art. 1427; Hogan v. Kellum, 13 Tex., 399;Oustott v. Oustott, 27 Tex., 643.)

I contend that P. J. Willis & Bro. sued Morrison & Hunt as partners, and asked judgment against them as such, and that they will not be permitted to prove a case against one of them only. The allegation and proof must correspond. The case of Speake v. White, 14 Tex., 365, is considered decisive of this question.

ROBERTS, CHIEF JUSTICE.

This is a suit upon an unpaid draft, against the drawers, alleged to be given for a previous debt due to the payees from the firm of Morrison & Co., of which Hunt was a member.

Morrison excepts, and pleads a general denial. Hunt also excepts, and pleads non est factum, and that he was not, at the time said draft was executed, a partner in said firm. This is denied by plaintiffs, Willis & Bro., and in avoidance, it is also replied that Hunt, after its execution, fully ratified the act, which is denied by Hunt. There was a verdict for “defendant,” and judgment for both defendants.

Appellant makes a question upon the pleadings as to whether or not the plea of non est factum was properly in the case, under the rulings of the court, although it seems to have been so treated by the parties, as shown by the evidence adduced, and by the court in its charge, and no such question was made on the trial, after the issues were settled, as exhibited in the recitals of the judgment.

Questions were raised also as to the sufficiency of the petition, as well as of the pleas, and upon a motion for new trial it was objected that the verdict of the jury was not supported by or responsive to the evidence, and that the court erred in the charge to the jury, by which they were misled.

From the view which we take of the case, it is not deemed necessary to particularly discuss any of these questions, except the last, relating to the charge, as the pleadings may be amended and the proof may be varied upon another trial, so as to make both defendants liable.

At the end of a very correct and perspicuous charge, relating to the law arising upon the issues presented, upon the pleadings, and upon the evidence, the jury are instructed as follows: “If you cannot find against defendant Hunt, neither can you find against defendant Morrison.”

The question is, was this a correct charge in reference to the pleading and evidence in this case. The action was founded on the draft, and not on the account for the settlement of which it was given, and the petition claimed a judgment on it against both defendants, as partners, and prayed for general relief. The facts, as presented in the record, showed that both defendants were liable for the debt for which the draft was given, and that it was given by Hooker, by the authority and direction of Morrison, in the settlement of an account due from the firm of Morrison & Co. to the plaintiffs, though the account was not set out and declared on as constituting the cause of action, either in whole or in part, in the petition. The effect of the charge referred to was, that if Hunt maintained his defense of non est factum, and was not liable to be sued on the draft, it constituted no cause of action in this suit against Morrison, and that they should not render a verdict against him in this case.

The appellee's counsel contend that this charge is correct, and in support of it refer to the case of Speake v. White (14 Tex. Rep., 365) as decisive of the question.

That was an action by Speake and another, plaintiffs in error, against White and Powell, late merchants, on an account dated in December, 1851, with a written acknowledgment of a certain amount due, dated February 10, 1853, and signed, “White and Powell, in liquidation.” Powell pleaded that the partnership of White & Powell was dissolved on the 27th March, 1852, and that White, without his knowledge and consent,...