123 S.W. 207 | Tex. App. | 1909
The suit was instituted by the firm of Shivel Stewart against the appellees to recover damages for an alleged breach of contract of sale of a carload of sweet potatoes. Afterwards the death of R. H. Shivel was suggested to the court, and by order of the court Stewart was permitted as surviving partner to prosecute the suit for the use and benefit of the firm. From a judgment in favor of Greer Bros. against the appellants the appeal is prosecuted.
By proper assignment the appeal is rested for error on the question of the admissibility, as being inhibited by statute as testimony of statements made by and transactions with a deceased person, of certain evidence offered by appellees. The deceased partner, acting for his firm, made for his firm an oral contract of sale with the appellees, for breach of which the suit for damages is brought. The evidence objected to related to the terms of the contract of sale between the parties.
The statute of the State expressly denies the right to a party to the suit to testify against the opposite party unless called thereto by such opposite party in "all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent" as to "any transaction with or statement by" the decedent. If this evidence should be held as being inhibited by the statute, it would have to be upon the ground that this suit was an action by "a legal representative of a decedent" within the terms and meaning of the statute. We do not think that it could properly be so held in this case. The suit in the instant case was by the surviving partner as such for the use and benefit of the co-partnership on a co-partnership debt. He was not, we think, in the suit legally representing, in a distinctive personal capacity, the deceased. For the purpose of closing up the firm business, and no further, the surviving partner has the right of possession of the firm property as against the heirs or representatives of the deceased partner, and can sue as such surviving partner. Fulton v. Thompson,
If the suit in this case by the surviving partner as such is not a suit by a "legal representative of a decedent" within the meaning of the statute, as we think it is not, then the case of Roberts v. Yarboro,
Even if it should be held that the surviving partner appearing as such was bringing the suit in the dual capacity of representing himself and as the representative of the deceased, the evidence was admissible and not objectionable as against the living partner; and appellant, not having asked that it be restricted to the living partner, is in no position to complain. Evans v. Scott,
The case of Stuart Bros. v. Altman, 8 Texas Civ. App. 657[
Affirmed.