21 Tex. 585 | Tex. | 1858
Burleigh was not originally liable for the note, although it was executed in the firm name by his partner. Because it was given for a consideration disconnected with the business of the partnership.
The only question about which there can be any controversy is, as to the confirmation of the act.of his partner after the note was executed. Parton, being sworn, testified that he presented the note to Burleigh, “ who said that he would settle the same, if he could get the books, notes and accounts from Wilkins,” (his partner.)
Hoyt testified that he was present at one time, when Par-ton presented the note to Burleigh, and that Burleigh said that Wilkins had wrongfully executed the note, and that he would have nothing to do with it, and expressed great surprise at there being such a note.
This evidence is not sufficient to establish a confirmation, because, 1st. Burleigh might be willing to recognize the note, as his act, (although it was not,) if he had in his own hands the book, notes and accounts by which he could secure himself in the assumption of a debt he did not owe. The expression imports a willingness to make the note his own by paying it, if he had the boobs, &c., rather than an immediate assumption to pay it on such condition.
2nd. But if it be regarded in the strongest lightts again
Judgment is reversed and cause remanded.
Reversed and remanded.
