18 Tex. 401 | Tex. | 1857
Two grounds are relied on for reversing the judgment: first, that the Court erred in refusing instructions asked by the defendants ; second, that the verdict was not warranted by the evidence.
The general correctness of the charge of the Court is not questioned ; and there is nothing better settled in the practice of this Court, than that a judgment will not be reversed on the account of the refusal of instructions, where the law of the case has been fully and accurately given in the charge to the jury. It is the right of the party to have the jury instructed upon the law of the case ; but when this has been done, more can not be required. Where the Judge has embodied in his charge rules of law applicable to the case, in such form and
There is no question as to the rule, that if a person takes a partnership security from one of the partners, for what is known at the time to be an individual debt of the partner who gives the security, the other members of the firm will not be bound by it. This principle was distinctly stated in the charge. There could be no question as to that. But whether the note sued on was taken for the individual debt of the
The true questions in the case, which the jury were to decide, were, whether the note was given for the individual debt of the partner who gave it, whether this was known to the plaintiff, and if it was given for what was known to be the individual debt of the partner, whether the defendants consented to the transaction. These were the questions which arose upon the evidence. And thereupon the Court, adapting the charge to the very case in hand, told the jury, in substance, that it devolved
It only remains to consider whether the verdict of the" jury was warranted by the evidence. And we are of opinion that it was. It was not conclusively proved that the note was given for the individual debt of the partner ; or that the transactions and dealings between the parties, was of such a nature, as that the creditor knew, or should have known, that it was not on account of the partnership, but for the individual debt of the partner, that the note was given. But if it was given for what is known to be his individual debt, there are circumstances strongly tending to the conclusion that it was with the consent of his copartners. It was entered upon the books of the firm ; it was the subject of remark by their book-keeper and clerk at the time, whose duty it was. to apprise them of it; and though they did not reside at the place, it is quite improbable that they remained ignorant of it until after the bringing of this suit and the death of the creditor. Moreover they paid the draft drawn for a part of what is said to be the same individual debt. It is not probable that they paid this draft without knowing on what account it was given. It is scarcely to be supposed that they were so indifferent to the manner in which their co-partner was managing their affairs, as not to have obtained information of this transaction; and their silence for such a length of time, under the circumstances, is very cogent evidence that it was with their consent. Certainly, it would seem, the creditor had reasonable ground of belief that the partner with whom he dealt was acting with
Judgment affirmed.