Lee v. Hamilton

12 Tex. 413 | Tex. | 1854

Wheeler, J.

We are of opinion that the Court did not err in treating the plea, denying that the plaintiffs were partners as a nullity; because not sworn to when filed, and because the affidavit was appended without leave having been taken to amend. The object of requiring parties to obtain leave to amend is to give notice of the amendment to the adverse party. But it does not appear that the plaintiffs had notice of the amendment in this case until after the trial had commenced. They cannot therefore be held to have waived any right by going to trial without objecting to the amended plea. Nor could they be expected or required to come prepared with evidence to prove their partnership, when the fact was not put in issue by the plea as filed, in the manner required by the statute. (Hart. Dig. Art. 743.) To have held the plaintiffs affected by an amendment to the plea, made without leave of the Court, or notice of the amendment, would have operated a surprise and manifest injustice to the plaintiffs.

The matters in account claimed by the defendant were not pleaded as a set-off, but as payments; made to and received by one of the partners on account of the work done by them. Each partner has an implied authority to receive payment of debts due the firm. And such authority may be inferred to receive payment or satisfaction in property as well as in money, if received in the usual course of the trading and business of the firm; or if the other partner knew of the receipt of property by his co-partner on account of indebtedness to the firm and did not object. The charge of the Court appears to have been in the main correct. But in respect to the right of the defendant to have the value of the horse delivered to the plaintiff Hamilton, deducted from his indebtedness, it is to be apprehended the charge may have misled the jury. If the plaintiffs received the horse through the agency and at the expense of the defendant, it did not matter at whose hands he was received. If the horse was delivered'at the instance of the defendant and upon his credit, and was paid for by him, the delivery by another was as much a payment by him as if made by him in person. The material inquiry for the jury was whether the horse was received by Hamilton with the consent of his co-partner, either expressly given, or impliedly from their usual course of dealing and manner of transacting their business. If it was usual in the transaction of their business as partners, for one of them to receive property of this description on account of the firm, the consent of the other partner might be presumed from such being their usual course of dealing ; unless there were some circumstances attending this particular transaction from which the defendant had reason to suppose that the partner with whom he dealt was not acting fairly and honestly towards his co-partner. If there was such express or implied consent, the firm was chargeable; otherwise not. And this was the question for the jury to decide upon the evidence before them. But their attention was not directed by the charge of the Court to this inquiry ; but was the rather diverted from it, and directed to the single inquiry as to who were the immediate parties to the contract of sale of the horse. And the jury were given plainly to understand that they might find that the defendant was not a party to the contract for the delivery of the horse; but that the horse was sold by Jones to Hamilton ; and paid for by an assignment by the latter to the former,' of the defendant’s liability to the firm; in which case he could not be credited by the value of the horse; whereas there was no evidence to authorize such an hypothesis; or to warrant the jury in finding that such was the character of the transaction. And although the instruction asked by the defendant was liable to the objection that it also left out of view the question of the consent express or implied of the other partner to the receipt of payment in that manner, and on that account might well be refused, or if given, should have been with that qualification; yet its presentation of the facts respecting the delivery of the horse, was evidently intended to correct the misapprehension of the Court on that subject; and, it would seem, was sufficient to suggest the proper correction of the charge in this respect. But it did not have that effect. And as it is not improbable that this misapprehension may have been the occasion of misleading the jury to the prejudice of the defendant, the judgment must be reversed and the cause remanded. It does not become necessary therefore to revise the other rulings of the Court complained of.

Reversed and remanded.