author: HARPER, C. J.

text:
    HUTCHINSON v. MURRAY.
    (No. 333.)
    (Court of Civil Appeals of Texas. El Paso.
    June 11, 1914.
    Rehearing Denied Oct. 5, 1914.)
    1. Partnership (§ 107) — Termination of Firm — Action Between Partners.
    Where a partnership had been terminated, and the partnership profits had been divided, and such items as were not collected had been abandoned, with no hope of collection, one of the partners was entitled to maintain an action at law against his copartner for the settlement of a claim growing out of a single transaction during the existence of the partnership, which had not been settled.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. §§ 164-166, 170, 173; Dec. Dig. § 107.)
    2. Appear and Error (§ 1001) — Findings —Review.
    A jury’s finding on an issue of fact, based on sufficient evidence, cannot be questioned on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. § 1001.]
    3. Partnership (§ 111) — Dissolution — Profits — Defenses—Illegal Partnership Agreement.
    Where plaintiff brought suit in Texas to recover one-half of the moneys received by defendant, his partner, as the proceeds of a sale of a one-tenth interest in a corporation organized in Ohio to operate certain mines in Mexico, the action was not to enforce any of the active provisions of the contract of partnership, but merely to compel a division of profits made and in defendant’s handss as to which it was no defense that the partnership contract was illegal and unenforceable under the laws of Mexico.
    [Ed. Note. — For other cases, see Partnership, Cent. Dig. § 174; Dec. Dig. § 111.]
    Appeal from District Court, El Paso County; M. Nagle, Judge.
    Action by M. D. Murray against R. B. Hutchinson. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Wallace & Gardner and T. A. Falvey, all of El Paso, for appellant. W. M. Peticolas, of El Paso, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, C. J.

This suit was instituted by appellee against appellant for the recovery of $20,000, being one-half of the sum for which Hutchinson sold, in the United States, a tenth interest in an Ohio corporation, alleging: That about January, 1907, in Chihuahua, Mexico, Hutchinson represented to Murray that he had an agreement with Corrigan, McKinney & Co., a firm of Cleveland, Ohio, by which they had agreed to capitalize anything in the way of mines that he might find near a railroad and would give him a one-tenth interest therein, and that if he (Murray) would use his efforts to find such mines, he (Hutchinson) would divide said one-tenth interest with him. That Murray accepted said offer, and immediately thereafter, when they reached El Paso, said agreement between them was there reiterated and repeated. That plaintiff acted upon said agreement and looked for mines, and about May, 1907, discovered mines near a railroad at Terrazas station, known as the Rio Tinto group, and also discovered and examined a mine known as the San Rafael and one known as the Colombia. That plaintiff called Hutchinson’s attention to said mines, and Corrigan, McKinney & Co. furnished the money to first lease and bond and finally buy the San Rafael, the title thereto being finally taken in the name of the Rio Tinto Copper Company, and afterwards the Colombia and Rio Tinto group. That about December, 1908, the title to the San Rafael being in Hutchinson’s name and of the Colombia and Rio Tinto group being in Price McKinney’s name, Hutchinson, having in charge the acquirement of the tenth interest for plaintiff, and defendant, agreed with Corrigan, McKinney & Co. that the properties should be conveyed to an Ohio corporation in the United States, entered into a written agreement accepting for plaintiff and defendant a one-tenth interest in said Ohio corporation in lieu of an interest in said properties. That thereafter, about November or December, 1911, in the city of El Paso, Hutchinson again agreed and promised plaintiff that he would divide said tenth interest with him and pay him one-half of any sum realized therefor. That on June 27, 1912, in the United States of America, Hutchinson, without advising plaintiff, sold and disposed of said one-tenth interest in said Ohio corporation for the sum of $40,000 and on demand refused to pay plaintiff one-half. Plaintiff also alleged that, when the agreement was made in 'Chihuahua, it was intended to be performed by the capitalization of the mines in the United States; that although said agreement first contemplated that plaintiff and defendant were to receive an interest in the properties, the defendant, having in charge the acquirement of said interest, afterwards accepted, in lieu of the interest in the properties, an interest in an Ohio corporation; and that the plaintiff’s cause of action is for the recovery of one-half the sum that their joint interest in an American corporation was sold for in the United States. Plaintiff also averred that all partnership matters had been audited and settled, except the item sued for.

Defendant by his amended answer denied all and singular the allegations in plaintiff’s petition contained, and denied that he ever made a contract, or reiterated or ratified any contract, with plaintiff in El Paso, Tex. By special answer the defendant alleged that if any contract was made, as alleged by plaintiff, the same was a verbal contract made in the state of Chihuahua, republic of Mexico, and was a contract of partnership for the purpose of handling and disposing of mines and mining claims in the republic of Mexico, and under the laws and statutes of the republic of Mexico said verbal contract of partnership was null and void and could not be enforced in the courts of El Paso, Tex. Defendant pleaded certain statutes of Mexico, which he alleged required all contracts of the nature as set out by plaintiff to be in writing and properly stamped and recorded in order to be valid. Defendant also alleged that plaintiff could not prosecute the suit in the manner and way in which he was attempting to prosecute the same, for the reason that the same was a suit for a settlement and accounting of the verbal partnership agreement made in the republic of Mexico, and which verbal contract of partnership was void under the laws and statutes of the republic of Mexico, and, further, if plaintiff ever had any suit against the defendant, the same was a suit in equity for the dissolution of said alleged contract of partnership, and that there was due and owing to plaintiff a large amount of credits in the way of salary and expenses, as well as a large amount of money due and owing to the partnership, and, as there had never been a settlement and accounting of the partnership transaction, the suit could not be maintained by plaintiff for a division of the $40,000 secured on the sale of the one-tenth interest in the Rio Tinto group.

Trial by jury resulted in verdict for plaintiff for $20,000, from which this appeal is perfected.

Appellant’s first assignment charges that the judgment entered was not authorized by the verdict of the jury, in that plaintiff sued Hutchinson, Reynolds, and McNary, and the case was submitted against Hutchinson only, and the charge of the court and the verdict only applied to Hutchinson, which did not authorize a judgment against the other two defendants. This assignment is not borne out by the facts, which are that Reynolds and McNary were sureties on a replevin bond executed in garnishment suit. They had not appeared or answered in this suit, and the replevin bond was not filed in this suit. And the portion of the judgment that applies to them is neither a judgment in favor of nor against them. It reads as follows:

“It is ordered that plaintiff take nothing in this case by reason of said replevin bond against Reynolds and McNary, but this order is made without prejudice to any rights which plaintiff may have upon said replevin bond and against the parties in the garnishment case.”

The assignment is therefore overruled.

The second and tenth assignments in effect assert that.the pleadings show a verbal partnership contract between the parties in pursuance of which many business matters were transacted; that the evidence shows said contract has not been terminated or settlement had; that under such state of facts one partner cannot maintain an action at law against his copartner, on a claim growing out of a single transaction during the existence of such partnership. The plaintiff alleged that all the matters between the plaintiff and the defendant had been settled, and the moneys received divided, except this one item sued for; and the evidence is sufficient to show that all partnership profits had been divided, or that such items as were not collected had been abandoned, with no hope of collection, and the court properly charged the jury that, if they should find that such was not true, they should find for the defendant.

The question having been properly submitted to the jury, they having found against the defendant, and the evidence being sufficient to sustain the finding, the judgment of the lower court cannot be questioned here.

By his other assignments appellant charges directly or indirectly that (a) the contract, being verbal and made in Mexico, was governed by the laws of the republic of Mexico, and, not being in writing, stamped, and recorded, was void, and therefore cannot be enforced in Texas; (b) that it was to be performed in Mexico, and was performed there, and therefore the laws of Mexico must govern its enforcement, and, being void in Mexico, it could not be ratified elsewhere.

In support of this contention the appellant introduced as a witness, a lawyer from Mexico, who testified at length concerning the provisions of the Mexican laws; also introduced in evidence certain articles of the Mercantile and Civil Codes of the republic and of the state of Chihuahua, which undoubtedly are to the effect that verbal contracts involving more than a certain amount in value are void and unenforceable; but this is not a suit to enforce any of the active provisions of the contract, but one brought after its completion to adjust the profits which have resulted from it. In such case the partner, in whose hands the profits are, cannot refuse to divide because the original contract was void for lack of formality. De Leon v. Trevino, 49 Tex. 91, 30 Am. Rep. 101.

The facts alleged by plaintiff are that in 1907 appellant, Hutchinson, in a conversation with appellee in the city of Chihuahua, proposed that if he (appellee) would find valuable mines close to a railroad that he (appellant) could induce Corrigan, McKinney & Co. a corporation in the United States, to capitalize and work them, and that of the profits which might accrue they could get 10 per cent., to be divided equally between them; that they afterwards went to El Paso, Tex., together and talked the proposition over there; that in 1911 Hutchinson made a new promise to divide the one-tenth interest in the corporation, domiciled in Ohio, United States. The defendant’s pleading and evidence were simply a general denial, and upon these allegations the jury have found in favor of appellee, and the evidence is amply sufficient to- sustain the verdict of the jury.

There was nothing in the contract pleaded and nothing in the evidence to indicate that the contract was wholly to be performed in the republic of Mexico. While the facts show that the mines were found in Mexico, the sale was made in the United States, and the facts clearly show that the parties both so contemplated when the agreement was made between them. In fact, this is a suit brought in the United States for one-half of the moneys received by one partner as the proceeds of a sale of a one-tenth interest in a corporation in the United States, so, if there was any vice in the original’ contract, it has now been carried out, and the profits made by the joint action of the parties have passed into another form, to wit, an interest in an Ohio corporation, thence into cash in the hands of Hutchinson, and in equity and good conscience he cannot now refuse to divide.

Without specifically ■ mentioning each assignment, we have passed upon all the questions presented by what is said' above. Being without merit, they are overruled, and the cause affirmed.

Affirmed.


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. et al. v. HOUSTON PACKING CO.
    (No. 28.)
    (Court of Civil Appeals of Texas. El Paso.
    July 2, 1914.
    Rehearing Denied Oct. 5, 1914.)
    Carbides (§ 135) — Delay and Misdelivery —Elements of Damages — Loss of Profits.
    ■Where, in an action against certain carriers for delay and misdelivery of a private tank car; it was not shown that the carrier was informed that the car was to be loaded with oil at the place to which it was consigned, when it was delivered for ‘ transportation, plaintiff could not recover for profits alleged to have been lost because of failure to receive the oil with which the car was intended to be loaded.
    [Ed. Note. — For other cases, see Carriers, Cent Dig. §§ 557-559, '599-602, 603y2)-604y2; Dec. Dig. § 135.]
    Appeal from Harris County Court; A. E. Amerman, Judge.
    Action by the Houston Packing Company against the San Antonio & Aransas Pass Railway Company and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded after the return of answers to questions certified to the Supreme Court (167 S. W. 228).
    Baker, Botts, Parker & Garwood, of Houston, E. B. Perkins, of Dallas, and R. J. Boyle, of San Antonio, for appellants. Hutcheson, Campbell & Hutcheson, of Houston, for appellee.

       For other bases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r indexes

   HIGGINS, J.

This was an action by the Houston Packing Company against the San Antonio & Aransas Pass Railway Company and St. Louis & Southwestern Railway -Company of Texas, to recover damages alleged to have been sustained by reason of delay in transportation of an empty oil car delivered by the packing company in Houston, Tex., to the first-named railroad company, to be by it and its codefendant transported to Frost, Tex., and there delivered to the Planters’ Oil Company and loaded with crude cotton seed oil, and then returned to the packing company at Houston. In the petition it was alleged that on or about the 21st day of December, 1908, appellee delivered to the San Antonio & Aransas Pass Railway Company oil tank car No. 109, the property of appellee, to be delivered by the said railway company to the Planters’ Oil Company at Frost, Tex., and returned to the appellee loaded with oil; that the routing of said car was over the San Antonio & Aransas Pass Railway Company to Waco, Tex., for delivery to the St. Louis Southwestern Railway Cbmpany of Texas, to be by it delivered to the Planters’ Oil Company at Frost, for the purpose aforesaid; that said oil car was transported from Houston to Waco by the San Antonio & Aransas Pass Railway Company, and was by it delivered to the St. Louis Southwestern Railway Company of Texas, for the purpose of being transported to Frost; that said ear was not delivered to the Planters’ Oil Company at Frost, but was, through the negligence of the San Antonio & Aransas Pass Railway Company and St. Louis Southwestern Railway Company of Texas, diverted and sent out of the state of Texas, where it remained for a period of 71 days; that, by reason of-the said diversion, appellee was compelled to pay $2 demurrage for a period of 12 days, $24, and was further damaged in the sum of $720 by reason of said delay, as hereafter shown; that the diversion of said car and the retention of same 71 days was over the protest of appellee, and that said appellants refused to return said car, though often demanded; that said appellants knew, at the time of the delivery of the car to them for transportation -to Frost, of the necessity and use to which said car was being placed, and that appellee was being damaged by.reason of the diversion thereof; that, by reason of the diversion of said car, appellee was unable to procure another car to be used by it in its business, and was unable to procure the use of another .car to take the place of the one diverted;. that the car delivered by appellee to appellants, at the time of delivery, had no actual rental value, but that said car possessed a special value to appellee, in that appellee was using the car in its business of transporting oil to its plant in Houston, and there converting the same into soap stock and lard compound ; that, if appellee had had said car at said time, it would have handled and -brought to its plant during said 71 days 331,080 gallons of oil, which said 331,080 gallons of oil would have been converted, through its plant, which is an established business, and which has been maintained for many years, into soap stock and 340,000 pounds of lard compound; that said soap stock and lard compound would have been made and sold by plaintiff, as similar lard and soap stock made from other oil brought by it to its plant was made and sold, at a reasonable profit, to wit, on its soap stock, one-fourth cent per pound, on its lard compound, 15 cents per hundred pounds; that said profit was reasonable and usual, and was fixed and established by the long-continued custom of its business; that by reason of being deprived of its car, which was diverted by the appellants, appellee was deprived of said amount of oil, which said car would have handled, and was deprived of the soap stock and lard compound into which said oil would have been converted, and was deprived of the profits as herein-above pleaded, which said appellee would have made, to wit, the sum of $710; that appellants, at the time it received the car and diverted same, knew of the scarcity of oil tank cars, and well knew of the nature and kind of damage which appellee would be subjected to in the ease of failure of appellants to transport said oil.

Appellee further charges in its petition that during the period of 71 days, the time which appellee was deprived of the car, oil tank cars had no fixed and established rental value; that the reasonable value of the use of appellee’s ear and of cars similar thereto was $10 per. day, and that if appellants did not know the nature of appellee’s use of said car, and was not charged with liability to appellee, then appellants are liable to appellee for the reasonable value of the use of said car during the time appellee was deprived of same; that if oil tank car No. 109, or tank cars of similar nature, had a fixed and established rental value for the time in which appellee was deprived of same, said rental value was $10 per day; that, in trying to locate said car and have the same returned, appellee expended the further sum of $10.42 for telegrams, for all of which appellee sought damages against appellants.

Appellants answered by general demurrer and general denial, and specially excepted to all of paragraph 6 of appellee’s amended petition, wherein appellee sought to recover damages for profits, for the reason that said petition did not state the manner in which said alleged profits could have been made by appellee, in that it failed to state from whom I I appellee would have purchased the oil, and the price paid, and to whom appellee would have sold the oil or products, and the cost of manufacturing same, which special exception was overruled.

The case was tried before a jury and submitted upon special issues. The issues and answers hereto are as follows:

First. Did plaintiff’s tank car, or tank cars of a similar nature, have a reasonably established rental value during the period from December 24, 1908, to March 2, 1909? Answer: No.
Second. If you find from the preponderance of the evidence that the car had no rental value, and have answered question No. 1 in the negative, then, in that event, you will answer the following question:. What was the reasonable value of the use of the car, during the period when same was detained, to persons generally in the business of hauling and transporting cotton seed oil? Answer: $514.73.

On trial, appellee’s manager, T. J. Gibbons, testified:

“Car was to be loaded with crude oil at Frost and returned; was used by plaintiff solely for handling cotton seed oil. That they put on a line of tank cars for purpose of handling cotton seed oil because it was never able to get cars with any degree of certainty from the railroads. There is a difference in the work required of tank cars in question through the seasons, and that at one season plaintiff required the use of the car more than another season, to wit, during the busy season, which opens with the cotton season in August and September and closes in March, and during the summer season plaintiff practically had no use for the tank cars. That the period during which the car in question was out of service was plaintiff’s busy season. There was no fixed rental value for tank ears throughout the year. A ear was worth what it would bring, and the price would be determined by the demand and how bad the person wanting the car would need it. If plaintiff had had the tank car during the time it was delayed, it could have used some for hauling cotton seed oil. There was a steady demand for tank cars during that season. The purpose of the people in the South in getting the oil is to manufacture the lard compound, and the purpose in the North is to manufacture oleomargarine; also as to what kind of institutions are engaged in the business of purchasing oil and what kind are engaged in converting the oil into the finished products. During the time of the detention of the car, plaintiff purchased oil from perhaps 40 per cent, of the mills in Texas, including the mills in Cuero, Yoakum, Giddings, and all over South Texas. The market on oil has something to do with the value of tank cars, and their value to a great extent, is determined by the buyer, because of their availability to move oil at the time the seller wants it moved. The price of oil varied during the time the car was out and that $3 cents per gallon was the average price for oil ond that the market advanced still more in March. In my opinon at least $10 per day was the reasonable value of the use of the tank car for the purpose of hauling and transporting cotton seed oil for sale, or otherwise, from December 21st to March 2d.”

F. C. Snavelly, appellee’s traffic manager, testified:

“The months of December, January, February, and March was the busiest season of the year for plaintiff in handling cotton seed oil and manufacturing products therefrom, and the value of the use of a tank car to its owner at this season depends on the value of cotton seed oil. Plaintiff was unable to get other tank cars to haul oil while out of the use of the one in question.”

For a further statement of the facts, reference is made to the certificate in the case made upon certified questions to the Supreme Court. Appellants objected to all of the above-quoted testimony of Gibbons and Snavelly, upon the ground that same tended to show matters of which the defendants had. no notice at the time of the signing of the bill of lading or of the delivery of the car, and because the matters proven showed a special use by plaintiff of the tank car in question, and showed special damage suffered by reason of the delay in transportation and return of ear, of which matters defendants had no notice at the time of the signing of the bill of lading or the delivery of the car.

In answering the certified questions, the Supreme Court said:

“Assuming that the delay occurred in delivering the ear to the Planters’ Oil Company, and that the railroad company was not informed that it was to be loaded with oil, the value of the ordinary and usual use of such car would be the measure of damages for the failure to deliver it to that company within a reasonable time. If the delay occurred after the car was loaded and returned to the railroad company, and after it had been notified of the purpose to transport the oil to Houston for use there, the St. Louis & Southwestern Railway Company would be liable for such damages as would ordinarily result from the failure to deliver to the Houston Oil Company for the use to which the oil was to be applied. The facts certified show no special damages. The following eases state the law applicable to the facts; Railway Co. v. Belcher, 89 Tex. 428 [35 S. W. 6]; Bourland v. C., O. & G. Ry. Co., 99 Tex 407 [90 S. W. 483, 3 L. R. A. (N. S.) 1111, 122 Am. St. Rep. 647].”

The facts in this case disclose that the delay occurred in delivering the car to the Planters’ Oil Company; in fact, it was never delivered to the Planters’ Oil Company, but was diverted at Waco, and its return some 70 days later was to the packing company at Houston. It does not appear the railway company was informed that the ear was to be loaded with oil at the time it was delivered to it for transportation. The answer of the Supreme Court sheds but little, if any, light upon the second and third questions propounded. As we understand the entire answer, however, it would seem that much of the testimony of Gibbons and Snavelly was subject to the objection urged against it and should have been excluded.

The error complained of in the fourteenth assignment should not occur upon retrial.

The seventeenth assignment complains of the overruling of a special exception to that portion of the petition relative to profits. Since the evidence offered by the appellee in support of these allegations was excluded, the error in overruling the exception was harmless and would not require a reversal, but, since a reversal is necessary for the error indicated, it is proper to say that the allegations with reference to profits should - be stricken out. Appellee’s cross-assignment complaining of the exclusion of evidence of loss of profits is overruled.

Reversed and remanded.