The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1881-05-01

For life Is brief!
Adopt his creed
Aud give relief.
-
THE UOURTs.
synopsis Of Opinions Of suprem
Court, April ~, 1881.
Henry WEIGH w.J. b. Britton. Kee
q Yates made an assignment to j. H. Bri,
ton Of all their effects, the deed providing 70
the application BY Brit.on Of all the pro
cseds to the payment Of the debts Of the FIR
Of Keep Il Yates. Britton was gsrnishee
from Justices court by WEIGH on the day q
the assignment for debt due from Keep
Yates prior 10 assignment and the affidavit
for garnishment alleged U. B. Keep, Ton
Yates and M. M. Bond to compose said Arn
and the principal questions arise out of th,
alleged membership Of said bond Of the fra
Of Keep d Yates. The assignment of Keer
Il Yates named Bond b Csruthers as pre-.
ierred creditors. The iuvalidity of the as
Segment was charged upon the ground tina
Bond was 10 reality member of the firm OF
Keep u Yates. From the evidence IL ap
peared that Bond was empl Dyed by Keep &
Yates as salesman, his compensation 10 be q
percentage upon mel profits, or as one wit
ness testified at his option q stated amount
per month. The evidence showed thu,
Bonds only interest IN the firm was under
this agreement, and nothing hereunder wal
due him at the time of the ass gnment. At
ter judgment against garnishee, writ fol
certiorari was served In The name OF
some parties doing business as "Keep
u Yates" atfi lsvit 10 which was made
by NJ. NJ. Boni, and the bond for the writ
was signed By the three parties. Yates 10
r bis testimony denies that Bond WAS a
partner, but was salesman at 20 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 Uollyer on
Partnership. Sec. SO, A, as to actual part
nership of Bond. and bis liability to third
parties under the agreement. Tha folio wing
charge WAS properly given: IF Bond was
liable for losses and debts and was also in.
ttrested In the profits Of the firm of Keep &
Yates he would be partner; but If no was
only to receive a 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 b."
The following asking was properly refused
III Bond was simply 10 receive sum equal
toa certain portion Of the profits Of the
business % compensation for bis services,
that alone would not make him partner.
But 1t under tho contract between him and
Keep Il Yates he was to have an interest
10 the profits % profits, that Is, an interes,
IN that undivided portion Of the effects Of the
firm which might remain after deducting
from the entire effects the capital invested
together with the expenses Of the business,
whether such remaining portion be money OF
other property, he would be q partner u
The court also charged: "lf you believe
from the evidence that NJ. NJ. Bond was a
partner of Keep Il Yates, and any advantage
was reserved to him individually in SAID
assignment, you will find for tho plaintiff
but II Bond WAS member of said firm and
was also member of or had been member
Of the firm Of Bond Il Csruthors, then the
fact that said Bond 4 Oaruthers were among
the preferred creditors would not vtia,e tho
assignment nor entitle the plaintiff to recover
simply on the ground that Bond u Caruthers
were so preferred" Held, correct. Judgmen,
affirmed. Gould, j.
W. h. 9uerin. assignee, vs.. Mary Patter
son. ct 81; from Ellis county.
!. Petition Of plaintiff below appellant
alleged his appointment 40 assignee of r. 1
Son, both by and Of assignment, and BY
the probate court under thu insolyent laws O
Ohio. Tbs demurrer presented the queslio.
that plaintiff could not sue In this sale rs 81
assignee appointed BY the lava Of Ohio
which demurrer was sustained; but held, tina
inasmuch as the court permitted the plaintiff
TO sue under his appointment by tho deed
'he ruling, " error, was only abstract, ant
not TO the prejudice Of plaintiff 9. Il hs
long been the settled rule In thiS state tina
this court will not interfere with the verlic
OF the Jury founded upon conflicting evi
dence, except In cases whore there was 9,
great q preponderance Of evidence sgsins
the verdict IS TO show that Il WAS manifest
ly wrong, and where the verdict does no
satisfactorily appear TO accord with the owl
derce, may In this courts opinion. have bee
influenced by the charge Of The court Tn
entire evide CO In this case, and the charge
coming within this exception. the case il r.
versed and rsmsnded. Bonner, ].
SynOpsls OfSupremo C0urt ODiuiOu M
biased on Reports OF Commissioners of Ar
peals.l
q. b 7. y. r. r company W. Myer,
appeal from Harris. Generally q railwa
company 10 liable 70 their servants for iu,u
riss resulting from the use Of defective m,
chinery, apparatus or material, In tho al,
charge Of their duty, provided The compau
knew or could have known BY reasousbl
care that the same was 10 defective or uuf
for The purposes for which Il WA Furnished
but Il the servant after having knowledge {
such defective machinery, apparatus {
material. remains In tho service and attemp
70 use the came and 10 thereby injured, 4
cannot recover Of the COMPANY for .uc
injury. Pierce on railroads, p. $40, note
Ia the casa under confederation Il 10 clear On
beyond dispute thu. Appelles's injuries :
suited from bis Attemp.to substl,u.s the ar
II n switch.chsin for = coupling link, q,
uss thv fame In y way and for a pu,no
enlirely different from that Tor wAlch n ~
furnished or intended 70 b used. II