Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-01-29

|; W. Stevens. associate justices; ". l..
Hun, clerk,
No. 81. W ~ Barker, Appellant. W..
Abbott Keller, Tppcllees Appeal
from Wilbmgcr county.
OPINION
Abbott X Keller were partners engaged
In business us merchants ia the town Of
Mangum, Greer county, Texas. one W.
y, Barker attached their entire stock of
goods nnd also their store-house und lots
upon which it was situated. The defcn-
dnut Abbott recOuyencd alleging that the
attachment was wruugiully issued and
that his partner Keller refused to joiu
IN his plea Of rccunycnt,ou, uud asked
that he be- made party thereto IL
seems that Keller was made II party 10
the suit The trial resulted In verdict
and judgment la favor OF appellee for
the benefit of the firm for the full value
of the stock OF goods, house aud lot rs
claimed by him. The court below in
siructrd the jury that the measure of
damage appellee would hc entitled 10 re-
cover iu ease They found for him. would
Ice the reasonable market value of the
property levied upon AVID seized under
the writ of attachment 0t tho time and
place of such seizure with interest from
the date of tho levy: aud also at the re.
quest OF appellee the jury were instruct
eel that this measure of damage would -
such an amount as the goods ana
house and lots We're reasonably worth ON
the market 0t the date they were at
lnchcd, together with interest thereon
M the rate o.. y Per cent from the date of
such levy The giving of this charge
We think win neccssitate reversal of
the Judgment
That the value Of rcnl estate Is not the
measure of the damage for leyying AN
attachment thereon seems To be con
coded, but appellee attempts To sustain
this charge upon the theory that the
land referred To was In Greer county,
aud that the court judicialy knows thnt
no one has title to land In that county,
aud t'"t therefore the house was per-
sonnl property; but we think this would
Ice mo- answer even % o. hc conceded thnt
the court d'd have such judicial lnowI-
edge. 10 will be noted that the Uty
were instructed to find the value Of the
house and lots, not the value of the
house alone disconnected from the lots,
and tho evidence upon which the finding
of the jury was based included the
value of the lots. Appellee Abbott les
ihcd that 'thc house bought Of plaintin
was worth about 500 ~ Vernon. ANA
AFTER they rebuilt il ~ Monmm Il ana
tue lots Wcrc worth about 5000" II II
hr conceded that the lots ware not the
property of appellee Z will certainly not
De conceded thar His right tn recover
their value Ia better than lr he owned
them
Appellant contonds that anpcllceshould
not be- allowed 10 maintain his plen i'm re-
convention because 10 appears therefrom
that Keller, one Of the partners. refused
10 Join therein: and also, because il "a
claimed the attachment was with the con.
sent Of such partner As a general rple
must he conceded that an Of the part
hers should join % recover the conversion
on Partnership prQpcrty, kirbs and
spies VS.. Proyinc, 7S Texas, 353: Tvn-
burg ana Co, W. Cohen. 90 Texas. 40;
%nI law of partnership by Batcs section
lNWi list l.iudley on partnprshin oTO.
but one partner cannot defeat the rigbts
"t ms copartner by refusing 10 ioln I'm
snrh suit Where one Of tho pnrtpnrs
refuses to join, the other can. I'm some
cases. use his name even against lis
CONSENT LIST Lndlcy on partneship
- ana authorities cited in notr: ana
~ u'''' 'ANrs inc non-consentiug partner
van h' nude party defendant 1n1
hates on Partnership. section 1917 II |
me attachment was wrongfuly sued ont
ana TINS was done hy rnluslon baty,.,,
appellant and Keller for tbe nurnos, ~ |
lhJuilng Abbott, Keller should be made |
1eiendant in the plea for reconyention
1uu Appott restricted 20 his individual |
u9nmge, unless he should nnirmatiynly |
show e case which entities him a. ~
cover The inll value of the partnrrslip |
PROPERTY thus converted, such as that he |
nau pmo partnership debts aud this |
Moull ne necessary 90 reimburse him |
OF some other equitable oanse t6at uoml'i
ehlllle ann 20 the proceeds OF Mi tbs |
ptvpeily MS against hls partner. m the |
AuaShlheht WAS wrongmlly sued out IN |
Appellant without amy oollusion on tb,.
iait OF heliar' upon the refusal az Rel |
49, JON N the plea Of reconyention |
NNoo't should be allowed 10 use hls |
name 70 recover the full amonnt ~ aa ms