18 S.W. 799 | Tex. | 1891
Appellant's first, second, and eighth assignments of error raise the question of parties as presented by his exceptions to the petition, but only on the ground that the persons who were claimed to be necessary parties were such as *669 beneficiaries in a trust, and not as partners. If Connally Co. were a partnership, all of the partners would be necessary parties to an action of debt for the price of the goods. "It is not necessary to consider whether they would be in a suit for the value of the goods, if the possession thereof was obtained by the fraudulent representations of the defendant, because the court arrived at no conclusion that the goods were fraudulently obtained. But if Connally Co. was a trust estate managed by the defendant as trustee, it is clear that the beneficiaries of the trust would not be necessary parties to a suit for a debt incurred in the management of the trust, if the trustee should be personally liable therefor; and this question will be considered under another assignment raising that question.
Mere participation in profits does not constitute partnership, although there should be a contract from which they were derived. Buzard v. Bank,
Appellant's ninth and tenth assignments of error are as follows:
"The court erred in its conclusions of fact and law in finding that the estate of Connally Co. was a trust estate and Nathan Connally was trustee of same, and finding further that goods, wares, and merchandise mentioned in plaintiff's petition were sold and delivered to Connally Co. by plaintiffs, and then rendering judgment against defendant Nathan Connally for the debt here sued on. *670
"The court erred in its finding of law that defendant Nathan Connally would be liable for said debt personally, because he failed to make a contract with plaintiff exempting him from said liabilities."
As we are of the opinion that a trust estate was created by the instrument of conveyance from M.A.T. Connally to her father C.P. Connally, it remains only to consider under the above assignments whether or not the trustee (the defendant) was personally liable for the goods purchased by him for the trust estate from plaintiffs.
Trustees of a corporate body with defined powers are not personally liable, and such has been the recognized rule in this State from the early decisions. Traynham v. Jackson,
The account sued on was not barred by limitation when plaintiffs' first ended original petition was filed, so it is unnecessary to inquire whether or not the amended petition set up a new cause of action. It appears from the petition that the account was not due for a time after the date of the items, from which two years would extend past the filing of the amended petition; so the demurrer setting up limitation was properly overruled by the court.
We conclude that there was no error in the judgment of the court below, and that the same should be affirmed.
Affirmed.
Adopted December 22, 1891. *672
[EDITORS' NOTE: THIS PAGE IS BLANK.] *673