156 S.W. 569 | Tex. App. | 1913
N. Levin sued Wm. Eppstein, Edward Roos, A. H. Danforth, and Bartley Cushing, as partners, in the district court of Bexar county, to recover the sum of $575, balance due him for material supplied and services rendered in making and painting certain scenery to be used upon the stage of a theater in San Antonio, of which the defendants were alleged to be lessees. Defendant Eppstein, by answer, denied under oath the partnership, and alleged that he was, at the time the said scenery was ordered, acting as the agent of Roos and Danforth, who were alone liable for the debt to plaintiff. He further alleged that said Roos and Danforth had specially agreed to pay the debt sued on and to hold him harmless against any claim by Levin or any other person, and he prayed that, if judgment be rendered against him for said debt, he have judgment over against Roos and Danforth. Roos and Danforth answered by a general denial as to the claim of Levin and the cross-action by Eppstein. Trial without a jury resulted in a judgment for Levin against Eppstein, Roos, and Danforth jointly and severally for the whole of the debt and over against Roos and Danforth in favor of Eppstein in accordance with his prayer.
There is no evidence which in any manner shows that Eppstein was the agent of Roos and Danforth. He had the right as a member of the firm to contract debts for the partnership, and up to the sum of $10,000 Roos and Danforth were obliged to pay such obligations. Eppstein did not plead nor did he prove that any part of the $10,000 remained on hand out of which this debt could have been satisfied, and it is immaterial whether the members of the firm had in mind from the beginning this expenditure for scenery. Eppstein's right to sue appellants for money paid out by him on behalf of the partnership accounts rested wholly upon contract. Collyer on Part. § 284; Parsons on Part. § 286; Story on Part. § 221. In the absence of the express contract by Roos and Danforth to pay $10,000 in promoting the interests of the partnership, the law would have charged each partner separately and equally with the cost and expenses, and when the sum agreed to be advanced by them was legitimately expended in the promotion of the enterprise, their separate obligation ceased, and any other debt contracted by any one of the partners, for the firm account, became a firm debt equally the obligation of all. The burden was upon the member of the firm seeking immunity from firm obligation to allege and prove facts which entitled him to such immunity. Eppstein, not having done this, was not entitled to have judgment over against his codefendants.
The right of contribution between partners has been recognized only after a full settlement or accounting has been had which shows the inequalities in their accounts. Merriwether v. Hardeman,
That part of the judgment of the lower court wherein the plaintiff, Levin, is permitted to recover against Roos, Danforth, and Eppstein is affirmed. That portion which permits Eppstein to recover over against his codefendants Roos and Danforth is reversed and here rendered that he take nothing by his cross-action against said codefendants and that he pay all costs of this appeal.
Affirmed in part and reversed and rendered in part.