4 Willson 311 | Tex. App. | 1891
Opinion by
§ 208. Copartnership; dissolution of; division, collection, etc., of accounts of; case stated. These parties were partners in the mercantile business, appellee having one-fourth interest in the same. Some time in 1883, and prior to November, they dissolved partnership, and the accounts due the firm were left with appellant, Goldman, for collection for one year from November 23, 1883. Appellant executed to appellee notes for the whole of the latter’s interest, with an agreement that at the end of the year the notes were to be credited with one-fourth of the uncollected accounts. In 1884 appellee sued Goldman in the county court of Wichita county for the collection of such notes as had not been paid. Appellant defended that suit upon the grounds that a large lot of the accounts were not collectible, and as to $1,983.50 the defense
We have not the time now, nor do we think it necessary, to discuss all the questions presented by counsel. We think the following proposition will suffice to settle the case'. The judgment rendered in 1884 simply adjudged that appellee was entitled to one-fourth interest in the debts due the firm, and that portion of the judgment commanding appellant to transfer the undivided one-fourth interest in said accounts w§,s surplus-age. It was not intended to direct appellant to transfer the possession of the accounts, nor that he should write upon each account, “an undivided one'-fourth of this account transferred to M. Marcus.” By the partnership Marcus was entitled to one-fourth interest, and not by the judgment. In the judgment of 1884 Marcus recovered $77.35, and this court did not reverse, because it decreed an undivided one-fourth in the accounts to Marcus, and directed appellant to transfer that interest to him, because neither party would or could be injured. This part of the judgment was considered surplusage, and harmless. It is not in the power of the court to take from a former partner accounts of evidence of indebted
Reversed and remanded.