The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1890-05-29
THE couRA
SUPREME cou

| oUfhbME IVOR
The supreme court deci fol
lowing cases on May "a, ~
BuzARD & HILLARD Vs. NG
MosTY, from Sha3Sc... Ny
Opinion byHenry, J.
Appellants, as assignees, p
pellees as partners on a CON- IN
the delivery OF cattle entered iA--9
r. A. Houston with said appelleest
August Is, 1881, and alleged payme,.5
of the money, but failure on appellee
part to perform the contract, MostJ
made default. McAnulty denied un.
der oath the partnership to have ex-
listed on August Is, 1881, and denied
liability on his part for the per
Torrance of the contract. The evi.
dence shows written articles of co.
partnership of date August II, 1881.
and Mostly testified that the partner
ship had been agreed upon on August
10, 1881, and only was in its agree
meats reduced to writing on August
II, 1881, and that the contract in con
troversy was made in the presence
and with the approval of McAnulty.
McAnulty testified to the contrary.
The vital questions are: Was there a
partnership August Ii, 1881? If not,
was the contract entered into with q
view of becoming firm property, and
was it ratified by the firm? The
money received was used by the part.
nership. The court charged in sub
stance That if there was discussion
of partnership agreement, and
Mostly entered into cattle contract
before the execution of the partner
ship contract, but with the knowledge,
advice, ETC., of McAnulty, as firm
contract, and the firm afterwards used
and appropriated the money received
under the contract, then McAunlty
would be liable. That McAnulty's
liability depended on his having been
a partner on August Ii, 1881, and if
he was liable, although the contract
was signed by Mostly alone. That to
constitute a partnership there
must be a valid agreement, which
must be executed and that after that
all partners are equally liable for &C
counts, etc., done in the regular course
of the partnership and for it's benefit.
Held: These charges were clear, dis
eliminating and correct. A vital ques-
ton in the case is partnership vel
non, and while there was predicate
upon which to introduce Loving's
testimony on that point, yet it was a
material error to permit witness to
testify to his conclusions or under
stand as to what was said by Mostly
and McAnulty, instead of giving at
least the substance of the converse.
ton. The court correctly admitted
in evidence portion OF a sworn bill
in equity brought by plaintiff against
Houston in the United States court
for the purpose of resembling the con.
tract here sued upon, because Nc.
Annuity was not bound by it, etc. We
think this portion of the bill, sworn tc
by plaintiffs was properly admitted as
proof of admission of the fact thai
McAnulty was not liable. But appel
liant was also properly permitted tt
explain the matters in said pleading
(Wharton on Evidence, Vol. 1, p. 1888
Mostly exhibited in his dispositions {
Photographic copy OF the duplicate O
the original contract, which bore Nc
Anulty's name as one of the witnesses
(McAnulty had denied knowledge O
the existence of the contract unit
long after the execution.) McAnulty
denied the signature being his own
Plaintiffs, to contradict this offered {
memorandum as the original contrac
without signature or proof of execu
ton of said memorandum, to tn,
effect that McAnulty was witness t.
this duplicate contract. This wal
properly excluded. In this connec
ton it would have been error if thu
court had admitted the mere opinions
of witnesses to testify as experts as tt
the genuineness of McAnulty's sigma
ture. And further the Photographic
copy, although admitted without OBJ
lection could not have been asked fol
the purpose OF proving signature b.
comparison. at Tex. 504.)
Reversed and remanded.
WIN. LOGAN EFT ALvs. GEO. w. GLovEI
EFT AL, from Dallas county. Opinion
by Stayton, G. J.
In this suit by appellants, the heir
of Thomas Logan, for a strip of land o
Thos. Logan's league, the defendants
offeredin evidence paper proportint
to be the will of Thos. Logan, who
died in 1S45, but nothing was Offered
to show that such will had been ad
mitted to probate. This will wal
offered for the purpose Of showing
that the executor under it had righ
to establish the line as he did, which
brings the strip here in controversy
The objection to the introduction o
r the will should have been sustained
as the decree probating it had no
r been produced nor its destruction
had been proved, (66 Tex. 800; 6!
Tex, 80; SO Tex, 23) and even if thu
probate had been shown, this would
' not have authorized the executor Il
run line different from that in tn,
, grant, as that would have involved tn,
power to give away the estate. Thu
q | 80. r L. 81 10,