32 Tex. 758 | Tex. | 1870
From what is exhibited by this record, the principles of equity alone should have been, and in fact were invoked in the determination of this controversy, rather than the strict rules of law.
It is true the petition was founded upon a note, which was. alleged to be the evidence of indebtedness of appellant, as a partner with others, to the appellee; and which, by the plea of non est faetnmi, with the proof in support of it, totally nullified, the note sued upon, as an instrument of evidence to establish presumptively his indebtedness. Tet, the allegation in the petition that the indebtedness by the appellant and company to-the appellee was subsisting, was still sufficient to let in the-proof of the nature of that indebtedness; and that ex equo et. bono the appellant ought to pay it. That proof was adduced,, and the determination of the court, without the intervention of a jury, was an equitable decree that it should be paid. If the petition had been called a bill in equity, and the same proof had been introduced, upon its production, or at least upon final hearing, the petition, as a mere bill, would have-been dismissed as to the other parties brought in under the-word company, or “Co.,” and a final decree pronounced against the appellant for the amount due. Such a result or determination, is perfectly legitimate under our system of remedial justice. From the proof, the consideration of the reputed note,, which in strict law was a nullity, enured solely to the benefit, of the appellant, and was furnished with his tacit consent; or,, at least, with his knowledge and silent acquiescence; and it. would be inequitable for him to enjoy the fruits of another’s labor without compensation, hfothing appears in this record showing that the statute of limitation was plead; and this,
Affirmed.
