45 Tex. 429 | Tex. | 1876
There is an error in this case apparent - on the' face of the petition, and manifesting itself in every stage of its progress to the final judgment, for 'which it must be reversed. .
The appellees brought suit to establish the notes and accounts described in'their petition, as valid claims against the estate of which appellant is the legal representative. One of these claims, at least, purports to be the individual debt of the surviving partner of the firm of which appellant’s intestate was a member. That a partnership is ordinarily dissolved by'the death of one of its members, and that the surviving partner has no authority as such to create new obligations against the firm, or by his subsequent contracts and obligations to bind the estate of the deceased partner, is too well established to admit of discussion. And it is notinsisted by appellees that the surviving partner was authorized merely by reason of his survivorship to charge the estate with the debts and liabilities contracted by him subsequently to the dissolution of the firm. But it is claimed that by reason of the fact that the mills belonging to the firm were, by an order of the Probate Court, made at the instance of the administrator, placed in the exclusive control of the surviving partner, “ untrammeled by any person, to repair and keep said mills -running and pay running expenses, and to. apply the net' proceeds to the liquidation of the just claims against the said firm, conducting the business at his own discretion for the use and benefit of said firm,” that the debt to which reference is had, contracted by the survivor for boilers which, it is alleged, were necessary to keep said mills running, stands upon a different footing from ordinary contracts made by the surviving partner, or liabilities incurred without the sanction and authority of the court. The debt,’ it is said, was contracted by authority of the court for the benefit of the estate
The record shows that the boilers were purchased on the individual credit and responsibility of the surviving partner. He did not assume to contract for or bind the estate; no reference ta the estate, nor supposed liability on its part, was made in the contract creating the debt or- the security given for its payment. The vendor did not sell the boilers on the faith and credit of the estate, nor look to it for payment for them. If the surviving partner had paid for them, as he undertook and bound himself to do, unquestionably he could have only called upon the estate to contribute for their payment on accounting with it for the use and profits made from the mills, while in his exclusive possession and control. And if the creditor or his assignees can hold the estate liable for the debt or any part, of it, it is only through the equity of the surviving partner, if he had paid it, and they must assert it subject substantially- to the same equitable conditions and restrictions resting upon him.
Debts contracted by the firm, although the surviving partner is entitled to the use and control of the partnership assets, and it .is primarily his duty to settle the partnership liabilities, may unquestionably be established as valid claims against the estate, and payment of them enforced against it, without regard to the rights and liability of the estate and survivor, as between each other. But debts contracted and liabilities incurred by the survivor subsequent to his partner’s death, stand upon an altogether different footing. The estate is neither in law nor in equity bound by such contracts merely, but if liable on them, it is so only where it is made to appear, by all the facts and circumstances surrounding the transaction, that the estate has been benefited therefrom, without any
The'judgment is reversed and the cause remanded.
Reversed and remanded.