54 Tex. 454 | Tex. | 1881
Notwithstanding the incompleteness of the record in this case, for the want of a statement of facts or bill of exceptions, the errors complained of are such as will authorize then revision. As a general rule, it is well settled that the supreme court will not revise the charge of the court below where there is no statement of facts. Birge v. Wanhop, 23 Tex., 441; Fulgham v. Bendy, 23 Tex., 65; 4 Tex., 235; 20 Tex., 7; 11 Tex., 649. In Fulgham v. Bendy, it was said that it will seldom happen that a case can be presented in which errors in the charge can be revised, without a statement of facts showing the relevancy and importance of the matter sought to be revised. But in Galbraith v. Templeton, 20 Tex., 45, the court revised the ruling of the court below in the rejection of evidence on a bill of exceptions, although there was no statement of facts; the evidence going to the whole defense. And in Luckett v. Townsend, 3 Tex., 119, where there was no statement of facts, it was held that there was no necessity for it in that case, because it ajtpeared from the admissions in the pleadings that the verdict was wrong:
The rule and the exception was stated in Bast v. Alford, 22 Tex., 399, thus: “It is the well established rule of this court, that the charge of the judge below will not be revised, unless there be a statement of facts in the record.; except the pleadings contain matter which shows the charge to be necessarily erroneous. In this case the petition set forth a cause of action, alleging as the basis of it a contract of partnership; the answer confessed and avoided it by the allegation of certain facts connected with its formation and consummation; and the charge of the court instructed the jury that the answer thus made, if substantiated by evidence, was a bar to the action. Under this charge the jury decided that issue; the special finding of the jury upon it relieves the subject from doubt as to whether the charge referred to was merely abstract, as
If the charge of the judge was erroneous, it is apparent from the finding by the jury of the special fact ha their verdict, that the contract of partnership sued on was illegal, that they did not consider further the evidence before them in support of the plaintiff’s cause of action. If the court erred in its instruction, this court cannot say that the plaintiff may not have been injured thereby; for no evidence which he may have adduced to the jury, showing an indebtedness on partnership account, could have availed to give him a verdict for any part thereof.
The first assignment of error, that the court erred in setting aside the report of the auditor, is not supported by anything in the record, from which it can be seen whether •the action of the court was correct or not. The grounds of exception which were taken to the report were quite comprehensive. The report objected to embraced seventy-five pages of the transcript. There is no bill of exceptions, nor does it otherwise appear in the record, upon what ground the court acted in sustaining the motion to reject the report; it may have been done upon proof of some fact or facts under the motion, well warranting the ruling complained of. Under an assignment of error so general as this, the supreme court will not be required to determine whether this voluminous report was or was not obnoxious to any of the objections which were made to it, unless the objectionable matter should be specifically pointed out, and should be patent on the face of the report, or else that the grounds of action taken by the court below are preserved for inspection by a proper bill of exceptions.
The second and third assignments of error, that the court erred in overruling plaintiff’s exceptions to defendant’s answer, and in giving the first, second and third
Whether the contract of partnership, at the time it was formed and entered upon by the parties, was illegal and void as against public policy, is not necessarily the controlling question; but the true inquiry is, whether a party to that contract is liable or not, in an action against him, brought by his former partner, to recover from him his share of the proceeds of the partnership. In the case of De Leon v. Trevino, 49 Tex., 89, it was held, that although a contract may be illegal, it does not follow that it is illegal or immoral for the parties to it, after its completion, to fairly settle and adjust the profits and losses which have resulted from it. That the vice of the contract does not enter into such settlement. The discrimination made by Chief Justice Moore, in the opinion which he rendered in that case, between refusing relief to maintain and give effect to the original obnoxious contract, and of granting relief to sustain a subsequent contract, though collateral to it, after the complete consummation of that which was illegal, seems on principle and authority to be applicable to cases of a like character, where the plaintiff seeks to enforce his remedy at law, and the defendant refuses to make such voluntary settlement. Quoting further from the opinion of the Chief Justice, in the case of Brooks v. Martin, on a bill of equity by one partner against the other, to set aside a contract of sale of his interest in the partnership venture, the supreme court of the United States held, that “after a partnership contract confessedly against public policy has been carried out, and money contributed by one of the parties has passed into other forms, the results of the contemplated operation completed, a partner in whose hands the profits are, cannot refuse to account for and divide them, on the ground of the illegal character of the original contract.” 2 Wall., 70. Other cases equally pertinent to the question are
It may well be questioned, whether the contract of partnership itself, as the same is alleged to have been made, by defendant’s plea, was an illegal contract, as being against public policy. The citizens of the several states embraced within the government de facto (8 Wall., 9; 6 Wall., 13) of the Confederate States of Aunerica, were subject to the dominion and sovereign will of that government; under its laws the adult population were nearly all subject to either civil or military duty, and were required to contribute their aid in support of the war, both by such personal services, and by the enforced payment of taxes in money, and by payment of produce in kind. The illegality specified in this contract consists in a partnership formed, whereby the parties were to substitute mechanical work and materials to the service and use of the government, in lieu of military services. In a general and comprehensive sense of rendering aid to the war then being waged with the United States, it might be said that every citizen, more or less, within the limits of Texas, was thus aiding in the maintenance of the so-called rebellion, and in that sense the current, every-day contracts relating to the business of the civil and social life of all the inhabitants of the state, would have been subject to be classed as illegal contracts, unless limited by some principle or rule which shall discriminate and determine the special class which would, in a more restricted
The opinion of Chief Justice Roberts, in Alexander v. Lewis, 47 Tex., 490, is suggestive of the distinction that may properly be made in respect to contracts which were made during the war with specific reference to direct aid to be given in the actual prosecution of hostilities, and in respect to such others as might be made in the course of the ordinary transactions of social life, and commercial business even, where they in their tendency and consequences, would, by supplying the necessary wants of the inhabitants of Texas, indirectly aid in maintaining the Confederacy, and thereby encourage the prosecution of the war. The amended plea, in the case of Alexander v. Lewis, supra, which was the subject of the remarks made upon it by Chief Justice Roberts, elicited the opinion, that the facts stated in it, under the decisions of the supreme court of the United States, and of our own state (7 Wall., 700; 12 Wall., 342; 36 Tex., 602), were sufficient to show the illegality of the contract. The contract referred to involved an undertaking by the party making it, to bring back from Mexico, in lieu of cotton transported thither, “military stores, etc., to be used in the war against the United States.” But the chief justice proceeded to add, “there has been no effort in this case to investigate and bring to light the facts relating to the operations of the military board practically, or the objects of its creation, or to draw any distinction between the importation of cotton cards (which was the expressed object of this partnership), and the importation of military stores, and therefore, in this case, there is no reason for examining into the grounds of the decisions upon this subject that have been here cited.”
The implication from the opinion is, that the grounds of the decisions which have been made upon questions of
We rest our conclusion in the case before us, however, upon the question first discussed, and it is not necessary to decide beyond the point which is there involved.
We are of the opinion that the court erred in overruling the plaintiff’s exceptions to the defendant’s plea, and in the charge given to the jury, and that the judgment of the court below ought to be reversed, and the cause remanded for further proceedings.
Reversed and remanded.
[Opinion delivered March 11, 1881.]
