McFarland v. Wofford

16 Tex. 602 | Tex. | 1856

Lipscomb, J.

This suit was brought against the defendants on the following promissory note, viz :

$2,851 85-100.

Philadelphia, Sept/2nd, 1853.

Six months after date, the subscriber, resident in Elizabeth, County of Fannin, State of Texas, promises to pay to the order of McFarland, Evans & Co., twenty-three hundred and fifty-one dollars 85-100, without defalcation ; value received.

(Signed,)

A. M. HAMILL.

The petition alleges, that at the time the note was given John Wofford was a partner with Hamill, doing mercantile business with him, under the firm style of A. M. Hamill. Wofford denies the existence of any kind of co-partnership at the time the debt was incurred and the note given by Hamill.— There was a verdict and judgment for the defendant, Wofford; motion for a new trial by the plaintiffs, which was overruled.

From the statement of facts, the evidence was' far from clear and satisfactory in establishing the fact of the co-partnership, and is believed to preponderate in the negative of its existence. The note, though peculiarly constructed, furnishes no presumption of a co-partnership with Wofford, or any other person. We do not, therefore, feel authorized to say that the verdict of the jury was contrary to evidence, nor unsupported by evidence. The language of the Court, in its charge to the jury on the certainty required in the evidence, to prove facts, is perhaps objectionable, dealing too often in superlatives ; but, taken altogether, is believed to be sufficiently qualified to avoid misleading the jury ; nor is it believed, from a reference to the facts, that they were misled. The judgment is affirmed.

Judgment affirmed.