The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-05-23

there is raised for the first time in this
court the question of sufficiency of the
petition to support the judgment. There
were allegations of partnership at III
Paso in 1885 between Snhuster and L. b.
and j Frendenthal under the firm name
of l.. B. Frendenthal d. Co., and in Mexico
under the firm name of B. Schuster; that
june 10, 1885, the firm cold all its property
and assets to S. j. Frendenthal, and that
this sale was specially ratified on the 10th
of that month by defendant by written
conveyance by which, for the consldera'
ton OF S22, 862.68, he transferred all of
his interest in the assets of the partnership
to the party last named; that subsequently
l.. B. Frendenthal, Phi. Frendenthel and s.
j. Frendeuthal, plaintiffs herein, formed a
new partnership, and that s. j. Frenden-
thai transferred all the assets of the old
firm TO the new; that at the time of the
transfer by defendant to s. j: Frenden-
thai he was indebted to the firm in the
sum of $3743.78, which was paid off in the
transaction, and that in addition thereto
he was indebted to the firm in the sum Of
50 337 in Mexican money for money re-
ceived and drawn by him belonging to
said firm from their branch house IN Chi
huahua, and charged to him upon the
books at that place. Demand and refusal
to pay is also alleged.
1t is insisted that the petition is INSULT
Gent because il is not alleged that the
partnership is dissolved and because an
action of debt cannot be maintained by a
firm upon an indebtedness OF member
to partnership.
The court argues that if the demurrer to
the petition had been insisted upon 1t may
be that it should have been sustained, hut
there having been verdict in the case
without any action upon the demurrer,
holds that any defect in the allegations
has been cured by the verdict.
Ia reaching this conclusion the court
argues that where there has oeen judg-
ment by default upon petition defective
in substance, the defect in the pleading
may be taken advantage of upon error,
but holds that a different rule prevails
where there has been verdict; that a
pleading is cured by the verdict when the
omitted fact is such that it is presumed;
that the judge. would not have
directed the jury to give the
verdict or the jury would not
have given the verdict unless it had been
proved. But as a verdict will not cure a
clear omission of a necessary substantive
allegation, the particular thing which is
presumed to have been proved must al
ways be such as can be i'm piled from the
allegations on the record by fair and rea-
sonabIe intendment. Gifted Grant vs..
Whittesey, AZ Texas Reports, page 32l;
Bracket vs.. Devine, % Texas Reports,
Supra 1876 and 1st vol. Chittys Pleading S
II Am. Ed. page 1867
The conclusions are deducible that the
old firm was dissolved by the sale of all
the assets of the cid partnership to third
party; that the partnership owed defend
ant nothing upon account further than
the int rest in the assets which he sold,
and that mis- unsatistied debt to the firm
was intended to be transferred by the sale
as n part of the assets. The purchaser of
the assets of the firm had right to re-
cover of defendant the amount of the al
legged indebtedness. His right undoubt-
eddy passed to plaintiff.
An assignment of error that the YER
dict is for SAB more than the petition
warrants, and that the amount of the
judgment is too much by about onefourth
of one per cent is regarded as too trivial
to call for the action of this court on ap-
peal, since action of the lower court was
not invoked for the correction of the
error, which would doubtless have been
corrected there by remittitur of the ex
cuss if called to the attention of the court
in the motion for new trial. Judgment
il affirmed.