The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-06-06

Coryell.
n. Haddock vs. John L. Taylor, from
Coleman county. The plaintiff Instituted
this suit to recover damages for mlsrepre-
sentation made by defendant with regard
to the title to a tract of land sold him by
defendant. The petition charges that
certain facts upon which the title sold
defendant, alleged to exist by de-
PENDANT, did not in fact exist,
causing the failure of the title.
Plaintiff seeks to recover 1870, the con-
sideration paid by him for the land, $3.50,
the value of permanent improvements
placed by him on the land; 5000 exemplary
damages and SIS as attorneys fee for
prosecuting the suit.
The defendant pleaded to the jurisdic-
ton of the court and excepted to the
claims for improvements, exemplary
damages and attorneys fee. The court
sustained the exceptions and dismissed
the petition. Held: That the petition
discloses good cause of action for the
the purchase money and interest, but not
for the other damages claimed. The ex-
ceptions to the petition, properly sus-
tanned, reduced plaintiffs demand to a
sum below the Jurisdiction of the district
court, and his suit was properly dismissed.
Judgment affirmed. Opinion by Henry, j..
Nolan county VS.. W. B. Simpson & Co.,
appeal from Nolan. The county of Nolan
instituted suit against W. B. Sim psUn d
Co., firm composed of w. B. Simp j..
B. Coleman and R. L. Dunman, to recover
$4,000, less $67. The firm of W. B. Simp-
son g. Co. were engaged in doing general
mercantile and limited exchange bust
ness in Nolan county. The county of No
Ian was engaged in constructing a court
house, and for that purpose had
issued it's bonds in sums of $1,000 which it
desired to negotiate for money. The
business of W. B. Simpson g. Co., was con-
Quoted exclusively by W. B. Simpson
The commissioners court authorized the
firm of W. B. Simpson q Co. to sell for
cash three of said bonds, and placed them
in the hands of W. B. Simpson for that
purpose. report was made to said
court in the name of w. B. Simpson il
Co., that the three bonds had been sold
for $4,000. The bonds were in fact sold in
the name of W. B. Simpson & Co., and the
money was placed to the credit of that
firm in a bank in the city Of st. Louis,
and subsequently paid out by said bank
on checks drawn in the name of said firm.
Eighty-seven dollars were allowed by tine
county as commissions for negotiating
the bonds which W. B. Simpson testified
he appropriated to his own use, claiming
that his partners had no interest in the
transaction. After the bonds had been
directed by the court to be negotiated
through W. B. Simpson g. Co., and had
been delivered for that purpose to W. B.
Simpson and before they had been nego-
tiated, the laborers upon the court house
quit work because they were not being
paid, when W. B. Simpson at the request
of the county judge and to keep the work
from stopping paid the laborers up to the
full amount of the proceeds of said bonds
less his commissions and three small,
items upon the promise of the county
Judge that he would be allowed to retain
such expenditures out of the proceeds
of the bonds, when they
were negotiated. The commissioners
court refused to ratify this transaction
and demanded that the firm of W. B.
Simpson g. Co., pay into the county treas
ury the $4,000 for which the bonds had
been sold less the sum of $87 allowed as
commissions. Neither of the partners
anything to do with or any actual knowl-
edge of the transaction, and they claim
that the transaction of negotiating the
bonds was not within the scope of the,
partnership business. W. B. Simpson
testified on the trial that
it was not a firm but his individual
transaction. There was verdict and
Judgment in favor of the county against
Sim pson, and in favor of Coleman & Dun
man against the county, for which the
county appeals and Simpson assigns
errors. The defendants attached to their
answers and pleaded as an Offset bill of
particulars of disbursement of the pro-
ceeds of the bonds for labor and material
used in constructing the county court
house, less $87 commissions and less three
items amounting to $24, the
price of blankets furnished
the county Jail. The verdict against
Simpson was for s27.S9.
The county complains of the following
charge: eff you believe as a fact from
the evidence, that the partnership of w. B.
Simpson d. Co. was not engaged in the
selling of bonds, and that the action of W.
B. Simpson was not within the scope of
the partnership, then the members of the
firm, which did not participate in, or ratify
the act, would not be bound no matter
how sincerely or strongly the plaintiff be
lieved that such act. was within the scope
of the partnership business" The court
holds that the charge states the law of the
case correctly.
Coleman, one OF the partners, testified
that he knew that B. l.. Dunman, the other
partner, did not authorize Simpson to
make the contract with the county, as he
(Dunman) knew nothing about the bust
ness and had nothing to do with it.
The admission of this evidence Is
assigned as error. The court did not err
in refusing to exclude it. There are var
GUS other assignments of error. The
court holds that the defendant could not
retain the money in his hands or apply it
to the payment of his debt, but it 5ould
have been paid to the treasurer of the
county without reference to his being a
creditor OF the comfy. Judgment af
irmed. Opinion by Henry, j.