21 S.W. 981 | Tex. App. | 1893
Appellee filed this suit October 24, 1889, in the District Court of Galveston County, against Samson Heidenheimer, on a verbal contract of agency, wherein he alleges, that it was agreed that said Walthew should go to England and there act as the agent of said Heidenheimer in chartering steamships for said Heidenheimer, to be loaded and freighted by him. That said Heidenheimer agreed to pay said Walthew for his said services one-fourth of the profits to be realized upon the loading and freighting of said vessels, and growing out of the chartering thereof. That in pursuance of said contract, said Walthew did charter the steamship Aldersgate at Liverpool, England, *504 on July 3, 1889, on terms satisfactory to said Heidenheimer. That said Heidenheimer loaded said steamer Aldersgate, and made profits in the sum of $6730.80, of which Walthew was entitled to $1682.70, for which he brings suit.
Defendant filed a general demurrer and a general denial. Heidenheimer died pending the suit, and his executors were made parties and defended the action.
On November 7, 1891, case tried by jury, and verdict and judgment for plaintiff for $1390.90 principal and $172.58 interest, total $1563.48, and defendants appealed.
Conclusions of fact. — 1. That the evidence was sufficient to warrant the jury in finding that the contract, as alleged, between Heidenheimer and Walthew was proven.
2. After the making of such contract, Heidenheimer entered into a limited partnership with one E.H. Fisher for the purpose of freighting and loading vessels, to which each contributed $5000, with the agreement for an equal division of profits.
3. That Walthew, as alleged by him, chartered and sent to Galveston the Aldersgate for Heidenheimer, and that it was freighted and loaded by E.H. Fisher for the firm of E.H. Fisher Co., and that the net profits realized therefrom amounted to $5563.62. This sum was divided between Fisher and Heidenheimer, in accordance with their contract of partnership, Heidenheimer receiving $2781.81.
4. That the contract between Heidenheimer and Walthew made Walthew the agent of Heidenheimer, his compensation for his services as such, as agreed on, being one-fourth of the net profits to be realized from the freighting of the vessel.
Conclusions of law. — 1. The court did not err in refusing the special charge set forth in appellants' third assignment of error. The facts there enumerated would not constitute a partnership between Heidenheimer and Walthew. The share of profits allowed Walthew was compensation for his services as Heidenheimer's agent.
2. The evidence was not sufficient to show such partnership, and the court did not err in refusing the second and third special instructions copied in the fourth and fifth assignments, which stated the effect such a partnership would have upon the rights of the parties.
3. The fourth special instruction asked by appellant, which is as follows, "If the jury believe from the evidence that the partnership of E.H. Fisher Co. was a special partnership under the statutes, that E.H. Fisher was the general partner and Heidenheimer was a special partner, then Heidenheimer had no authority to bind E.H. Fisher Co. in any contract, but Heidenheimer Bros. had the right to employ E.H. Fisher *505 Co., or any other agency, to load the vessels chartered by Heidenheimer and Walthew," was correctly refused. Heidenheimer had not the right, to the prejudice of Walthew, to admit another to share in the profits of the undertaking. The rights of Walthew, under his contract, were unaffected by the subsequent agreement between Heidenheimer and Fisher.
4. The portion of the charge of the court complained of in the ninth assignment of error properly submitted to the jury, under the evidence, the question as to the proof of the contract as alleged by the plaintiff. Heidenheimer was dead, and Walthew was not allowed to testify as to the contract, but there were facts and circumstances in evidence from which the terms of the agreement could be inferred. The court properly made appellee's right to recover depend upon proof of such a contract as he alleged.
5. There was no error in refusal of the court to suppress the depositions of Walthew, nor in allowing that of Heidenheimer to be read.
6. The verdict of the jury in finding for plaintiff one-fourth of the profits realized from the freighting of the vessel was correct. The part of the gains allowed by Heidenheimer to Fisher should not have been deducted.
The judgment is therefore affirmed.
Affirmed.
