Blackman v. Green

| Tex. | Jul 1, 1856

Lipscomb, J.

This suit was brought by Robert Green and Harry L. Douglass, merchants trading under the firm and style of Green & Douglass, against the appellant, on two notes of hand made and executed by the appellant; the first payable to Green & Douglass, and the other payable to Green, Douglas & Co. After the answer of the appellant, the death of both the plaintiffs was suggested, and on motion, John J. Green, executor of Robert Green,, and Jane A. Douglass, administratrix of Harry L. Douglas, were made parties plaintiffs ; and there was a trial; verdict for the plaintiffs ; and a motion for a new trial overruled ; from which the defendant appealed.

The first objection taken by the appellant is the misjoinder of the parties ; that the survivor of the parties, they being partners, had the right to settle the co-partnership matters. If both died, the administrator of the one who died last would be entitled to the administration of the whole. There was no objection to the parties made in the Court below, and it cannot be made now. The record does not disclose the date of the death of the respective parties, and the presumption is they died about the same time. And under our practice, there is no objection to the joining of the executor of one with the administrator of the other, as parties plaintiff in the same suit. It would not be permitted by the common law practice*.

The next ground urged by the appellant is the ruling of the Court, excluding the interrogatories propounded to the plaintiffs, as confessed, they not having been answered. This is a question of some difficulty. It is not often that the executor or administrator could give satisfactory answers to interrogatories of this nature. But the statute makes no exception. By Article 785 (Hart. Dig.) either party may propound interrogatories to the other, on making oath of the materiality of the answers sought, and that he knows of no other person by whom he can prove the same facts. And if it was doubtful whether the evidence as offered could have changed the result, or ought to have entitled the party to a different verdict, the judgment would be reversed and remanded for a new trial. But, from the state of the facts, we find no reason to believe the result would have been different had the evidence been admitted1. The object of the evidence was to show that credits for lumber had not been given in the account rendered, and had not been taken in the account when it was closed. Now, the account annexed to the interrogatories shows considerable credits for lumber, and the bookkeeper, whose testimony was taken by the plaintiffs, is positive that credit was given for all of the lumber received, and the note was given for the balance. It is true, this evidence was taken at the instance of the plaintiffs, but the defendant had an opportunity to have cross-examined the witness, and he must have known that the bookkeeper was more conversant with the business transactions of the late firm, than the administratrix of the one, and the executor of the other, residing at New Orleans, could have been. And the authority to resort, to the parties, for evidence by interrogatories, is based upon the fact, that there is no other witness by whom the facts sought to be established could be proven.

If, however, the evidence sought to be introduced by the appellant, had been of a character to have produced a different verdict, there is a good legal objection to its reception, and that is, that it sought to show that the notes did not close the account between the parties. The presumption of law is, that it did close the account, after allowing all credits ; that it was for the balance in favor of the payees. If from mistake, accident or any other cause, it did not close the account fairly, but something had been omitted, the defendant should have laid the foundation for such proof to impeach the presumption, by averring, in his answer, such facts, and thereby have apprised the plaintiffs of the nature of the defence, relied upon against the note.

The remaining ground, that there was error in overruling the application for a new trial, on the ground of newly discovered evidence since the trial, cannot be available, because the receipt, purporting to have been given by the payees of the note, for lumber, to be paid for in goods, bears date long anterior to the date of the notes, and to the account in which the appellant was proven to have received credit, ror all the lumber received, and there is no averment in the answer, to let in proof to impeach the presumption that the note closed the transactions between the parties. And again, il there had been a sufficient averment, the appellant did not show the diligence to have the benefit of the receipt on the trial, that is required by law. He says that he knew of the existence of this receipt, but he could not find it, yet he did not ask for a continuance, to give him time to search for and find it.

The case has not been argued on either side, and there is no assignment of errors, to particularly point out to the Court the errors relied on, and we have had to depend upon an imperfect brief for those that we suppose were relied on by the appellant. The examination of the record has led us to the conclusion to affirm the judgment.

Judgment affirmed.