Suit wаs by the state against V. O. E. Wright, W. B. Mackey, and B. E. Wright, doing ¡business under the firm name of W. B. Mackey Company, and against V. O. E. Wright and B. E. Wright, doing business under the firm name of V. O. E. Refining Company, for gasoline taxes and penalties due the state by said defendants on gasoline alleged to have been sold by them between November 1, 1931, and September 1, 1932, but not reported to the state, and on which no taxes had been paid; and for foreclosure of a statutory lien on their refinery in Gregg county, Tex. Trial was to a jury upon special issues, and upon their findings judgment was rendered against V. O. E. and B. E. Wright for $31,975.36, and for foreclosure of a statutory lien on said refinery; from which judgment the Wrights have appealed.
In response to special issues submitted, the jury found that the defendants hаd sold 750,-000 gallons of gasoline during said period which they had not reported to the state, and on which no tax had -been paid; and that their failure to report such sales was willfully donе with intention to.evade payment of such tax. Though not submitted to the jury, the court found in his judgment that V. O. E. Wright, B. E. Wright, and W. B. Mackey operated said refinery as a partnership from *353 some time prior tо November 1,1931, to about January 7, 1932, at which time Mackey withdrew therefrom, and that thereafter the same business was continued by V. O. E. and B. E. Wright under the name of the Y. O. E. Refining Company. No judgment was rendеred against Mackey, but no complaint is made as to his dismissal from the suit.
The first contention made 'by appellants is that the judgment for the entire amount cannot be sustained for tihe rеason that there was no separate finding of the jury as to how much of such tax accrued while Mackey was a partner, prior to the time he sold his interest to Y. O. E. Wright, and for which Mаckey was liable; or how much accrued after Y. O. E. and B. E. Wright took over the business; and no evidence or finding that V. O. E. Wright assumed any portion thereof due and owing by Mackey. It is also cоntended that Y. O. ®. Wright was never a partner in the business with Mackey; and that his wife, B. E. Wright, whose separate estate was invested in the refinery, because of her coverture could not form a partnership with Mackey, and could not therefore be held liable as a partner for such taxes.
The state’s petition does not allege that the defendants named were partners, but merely that they did business under the firm names indicated. No issue was raised as to said business being a partnership. While V. O. E. Wright did testify that prior to the early part of January, 1932, he did nоt own an interest in said business, the uncontroverted evidence shows that he had actual control and management of it all along. He appears to have operated it as if it were his individual business. He also testified that his wife’s separate funds were invested in it — to what extent is not shown. But nowhere did he or B. E. Wright plead any such investment, nor ask that her separate estate, if any, be protected. Had the trial court rendered any judgment in this regard, it would have been wholly without pleading to sustain it. Nor did he plead his wife’s coverture as any imрediment to the formation or existence of such partnership. He also testified in effect that the first arrangement with Mackey was in his wife’s name to prevent interferencе from his own creditors. Under such circumstances, and absent any request by appellants for a finding on that issue, we think there was ample evidence to sustain the court’s finding of a pаrtnership interest of V. O. E. Wright in said business from the outset. Consequently, so far as he was concerned, dismissal of Mackey as not being liable for the debts of the partnership 'does not reliеve V. O. E. Wright from liability from those resulting from, and due to, -his own conduct of said business. Adkins v. Smithfield Unit of Texas Honey Ball Ass’n (Tex. Civ. App.)
While there were no pleadings setting up either the coverture of B. E. Wright, or that her separate funds had been invested therein, the testimony shоwed that she was the wife of V. 0. E. Wright. - It is now settled that a married woman cannot enter into a partnership in a mercantile business with her husband or with any one else. Miller v. Marx & Kempner, supra; Middlebrook Bros, v. Zapp,
Appellants’ next contention, presented by four propositions, is that under the pleаdings and proof the state was entitled to recover at most taxes on only 178,000 gallons of gasoline. There is no merit in this. The state’s petition alleged that 1,202,713 gallons had been sold by defendants which had not been reported and on which no taxes had been paid. Of this amoimt 178,000 was alleged to have been sold to named purchasers. The remainder was alleged to have been sold to persons unknown to the appellee. The proof showed that the Y. O. E. Refining Company kept very inadequate books on their sales; but a former employee identified private *354 records kept by him of said refinery’s business during said period, -which were introduced in evidence. These records were audited by an auditor of thе state comptroller’s office, and showed numerous sales by said refinery of which its books showed no record. The statement of facts is voluminous, and much of the evidence is mоre or less circumstantial. It would unduly prolong this opinion to undertake even to summarize it here. Suffice it to say that a careful reading of it discloses amply sufficient evidence to warrant the Jury in finding a deliberate course of conduct on the part of Y. O. -E. Wright to evade payment of taxes due the state, and would, have sustained a jury finding of unreported sales by said refinery of more than 750,000 gallons.. Large amounts of oil were traced to the refinery of which its own books showed no record. Sales of gasoline at the refinery werе likewise shown by the state’s witnesses which were not shown by the books of the refinery. The jury was therefore authorized to find that oil shown to have been run to or in the possession of said rеfinery, the disposition of which was not accounted for on the books of the refinery, was refined into gasoline and sold 'by the refinery.
Appellants’ next contention is that the Acts of the 2dC. S. 41st Leg. (1929), ch. 88, p. 186, § 17, did not give the state a preferred lien on said refinery to secure the payment of such taxes; and that the amendment of same by the Acts 43d Leg. (1933) p. 75, c. 44 (Vernon’s Ann. Civ. St. art. 7065a — 1 et seq.; Vernon’s Ann. P. C. art. 141a — 1), which latter act (section 7 [Vernon’s Ann. Civ. St. art. 7065a — 7]) expressly gave a lien on refineries, manifests a legislative interpretation that such former act did nоt extend to and fix a lien on such refinery. We do not sustain this contention. The act in force when this case was tried and when such tax delinquencies occurred provided that such tаxes “shall be a preferred lien * * * upon all of the property of any distributor,, devoted to or used in his business as a distributor,” etc. This statute as amended by the 43d Legislature names and designates specifically several kinds of property to which such lien shall apply. We do not construe the amendment by the 43d Legislature of the former act as any interpretation that the properties named in the latter act were not included in the former. It merely clarifies, we think, and makes more specific the terms of the former act. It is the sеttled rule of construction that the language of the Legislature should be construed so as to give effect to the manifest purpose of the lawmaking body.
In the instant case, sо far as the record shows, the V. O. E. Refining Company had no filling stations nor other agencies of distribution. Its gasoline was, for the most part, sold at the refinery for cash, and hauled away in truсks belonging to others; To place appellants’ interpretation on said act would amount to a denial to the state in the instant case of any lien whatever on аny property as security for its taxes. Such was obviously not the purpose of the Legislature.
For the reasons stated, the judgment of the trial court is reformed so as to deny any personal judgment against B. E. Wright, wife of V. O. E. Wright; but in all other respects the judgment is affirmed.
Reformed in part, and in part affirmed.