The Dallas weekly herald. [volume] (Dallas, Tex.) 1873-1885, 1881-05-05
THE COURTS.
synopsis or OpiniOns OF supreme
O0urf, April ~, 1851.


court, April ~, 1851.
Henry Wolch vs.J. II. Brlton. Keel
IL Yates lnads an assignment TO j. II. Brit
ton Of all their effects, the deed providing fol
the application by Brit,on of oil the pro-
ceeds to the payment of the debts Of the firm
of Keep 81 Yates. Britton was ga rnsheeC
from Justices court by Welch on the day 0
the assignment for u debt due from Keep IL
Yates prior to assignment and the affidavit
for punishment alleged q. Is. Keep, Tom
Yates and M. NJ. Bond to compose said firm
and ,he principal questions arise out OF the
alleged membership OF said bond of the firm
of Keep g. Yates. The a'signment of Keep
& Yates named Bond 81 Caruthers as pre-,
erred creditors. The inv.lidity of the as
Segment was charged upon the ground that
Bond was in reality member OF the firm of
Keep & Yates. From the evidence II ap-
peared that Bond was empl Dyed by Keep u
Yates as salesman, his compensation to be q
percentage upon net profits, or as one wit
ness testified at his option a stated amount
per month. The evidence showed that
Bonds only interest IN the firm was under
this agreement, and nothing hereunder was
due him at the time of the ass gnment. At
ter judgment against garnisnee, writ for
certiorari WAS served in the name of
some parties doing business as keep
81 Yates" stfi lavit to which was made
by M. M Bond, and the bond for the writ
was signed BIZ the three parties. Yates In
his testimony denies that Bond was a
partner but was salesman at 70 per cent OF
net profits with one hundred and twenty-five
dollars per month guaranteed. The question
was upon partnership as affecting the valid
ity of the arrangement. See Collyer on
Partnership, secs. SO, A, as to actual part.
nership of Bond, and his liability to third
parties under the agreement. The following
charge was properly given: eff Bond was
liable for losses and debts and was also in
terested in the profits of the firm of Keep u
Yates he would be partner; but if he was
only to receive q part Of the net profits as
wages, he would not be; and Bond could not
be partner unless the parties intended and
agreed among themselves that he should be-"
The following asking was properly refused:
'If Bond was simply TO receive sum equal
to certain portion of the profits OF the
business as compensation for his services,
that alone would not make him partner.
But if under tho contract between him and
Keep 81 Yates he was to have an interest
in the profits as profits, that is, an Interest
in that undivided portion of the effects OF the
firm which might remain after deductlng
from the entire effects the capital invested
together with the expenses OF the business,
whether such remaining portion be money or
other property, he would be partner"
The court also charged: "If you believe
from the evidence that M. M. Bond was
partner of Keep s. Yates, and any advantage
was reserved to him Individually in said
assignment, you will find for the plaintiff
but il Bond was a member of said firm and !
was also member of or had been member
of the firm of Bond s. Csruthsrs, then the
fact that said Bond g. Caruthers were among |
the preferred creditors would not vtiate the
assignment nor entite the plaintiff to recover
simply on the ground that Bond u Caruthers
were 50 preferred" Held, correct. Judgment
affirmed. Gould, j.
w. x. Guerin, assignee, VS.. Mary Pat,er'
son. ct al; from Ellis county.
l. Petition of plaintiff below lapnellan,)
alleged his appointment as assignee OF t. "
Son, both by and of assignment, ard by
the probate court under the insolvent laws OF
Ohio. The demurrer presented the question
that plaintiff could not sue 10 this 81 ate rs an
assignee appointed by the laws of Ohio,
which demurrer was sustained; but held, that
inasmuch as the court permitted the plaintiff
to sue under his appointment by the deed,
the ruling, if error, was only abstract, and
not to the prejudice of plaintiff. 2 1t has
long been the settled rule in this state thai
this court will not interfere with the verdict
of the jury founded upon conflicting evil
dence, except in cases whore there was SO
great preponderance of evidence against
the verdict as to show that it was manifest
ly wrong, and where the verdict does not
appear to accord with the evil
dence, may in this courts opinion, have been
influenced by the charge of the court. The
entire eyide ce in this case, and the charge,
coming within this exception. the case is re
yersed and remanded. Bonner, j.