42 Tex. 188 | Tex. | 1874
Appellee brought suit against appellant, at the fall term, 1871, of the District Court of Wharton County, to recover the value of two thousand two hundred and four pounds of ginned cotton, loaned it was alleged, to her in May, 1864, and to be returned out of the crop of 1865, at which time it was asserted to have been worth
The defendant’s answer denied all liability and asserted that she -was a married woman; when the cotton was obtained it was the property of her sister Sarah I. Reeves; that her husband had settled with Mrs. Reeves and paid her for the cotton ; that plaintiff was at the date of the loan the overseer of Mrs. Reeves; that he had not then, or at any time since, any interest either in the cotton or its value ; that at the date of the loan it was not necessary to purchase supplies, with her husband’s income being about thirty thousand dollars from th.e sale of his crops ; that she was acting at the time as her husband’s agent, he being absent temporarily in the army; that she did not intend, neither did plaintiff expect, to hold her liable for the return of the cotton ; that she received no community property before or after her husband’s death; that his estate is insolvent, he being declared a bankrupt, and had received his discharge in bankruptcy in 1869.
After amendments and exceptions by both parties, a jury was
The six grounds relied on for a reversal of the judgment are embraced in the third assignment of error: that “ The judg“ment of the court is against the law, and against the evidence.”
Two questions are presented for consideration in this case. The first is, does it appear from the evidence that the plaintiff’s separate property is liable for the debt sued for ? and if so, has the plaintiff- shown a right on his part to maintain this suit ?
In reference to the first of these questions, the evidence shows that in May, 1864, defendant was not, in the legal meaning of the term, “ living separate and apart from her 61 husband,” as in the ease of Butler v. Robertson, 11 Texas, 142, and Walker v. Stringfellow, 30 Texas, 570, neither was she abandoned by her husband, as in Cheek v. Bellows, 17 Texas, 613, and Fullerton v. Doyle, 18 Texas, 3, as relied on by appellee. There is no resemblance in this to the cases cited. Defendant, at the time, was not acting as a femme sole in the sense in which it is applied to married women, whose acts'have been held to draw after them all the legal consequences that follow the acts of a femme sole in her business relations with others. She was at that time acting as the agent of her husband, B. H. D. Sorrel, then temporarily absent in the army, with authority to manage the plantation subject to his approval. It is shown in the evidence that defendant’s husband returned in May, 1864, from the army, and remained at home some weeks ; and plaintiff, in his amended petition, states that the gin-stand was sold to her husband in May, 1864. At this time the husband was in affluent circumstances. There was, at the date of the loan, one hundred bales of Sorrel’s cotton on the plantation belonging to and under the control of defendant’s husband. Plaintiff admits that Sorrel’s credit was at that time good, and •that he was able to support his family; that Sorrel had one
Were the exemption of defendant from liability a matter of doubt, this suit on the second question, as to the plaintiff’s right to maintain it on his own behalf, must fail. The plaintiff has not, in our opinion, shown any right to sue in his OAvn name as the legal or equitable owner of this claim. Plaintiff asserts, in his pleadings, and states as a witness,‘that the cotton loaned belonged to the estate of Wm. J. C. Reeves. Sarah J. Reeves, the widow of Wm. J. C. Reeves, and sister of defendant, was entitled to and did receive the assets of the estate. Plaintiff asserts that he is the owner of this claim, by reason, as he states, of having sold in 1864, to a Mr. Robinson, about twen-' ty-five bales of cotton belonging to Reeves, and that in his settlement with Mrs. Reeves, he included as sold to Robinson, the
Omitting from our consideration all opposing evidence, the proof adduced by plaintiff fails to show his right to maintain this suit. Judgment reversed and cause remanded.
Reversed and remanded.