(248 S.W.) DICKERSON v. STRAUSS et al. (No. 8254.)* (Court of Civil Appeals of Texas. Galveston. Feb. 9, 1923. Rehearing Denied March 8, 1923.) 1. Frauds, statute of 76-Oral transfer of interest in partnership not shown to own real estate is valid. An oral contract to transfer an interest in a partnership is not invalid under the statute, where there was no showing that the partnership owned any real estate. 2. Frauds, statute of 18(4)-Assumption of debts in consideration of transfer of interest in partnership is not promise to pay debt of another. An agreement in consideration of the transfer of an interest in a partnership to assume the debts for which the retiring partner was liable as a member of the firm is not a promise to pay the debt of another, but is an original undertaking which the statute does not require to be in writing. 3. Partnership . —213(2)-Partner alleging sale of interest for release of debts need not deny partnership under oath. The failure of a partner to deny under oath the existence of the partnership does not entitle plaintiffs to a judgment against him for a partnership debt, where he expressly admitted the existence of the partnership at one time, and alleged that he had transferred his interest therein to plaintiffs, who had agreed to assume the debts. Action by W. H. Dickerson and another against the Harrisburg Shipyard, a copartnership alleged to be composed of E. Strauss and Elbert Roberts, in which the Texas Lumber Company and others intervened. From a judgment that plaintiffs take nothing against the defendant Elbert Roberts and allowing recovery by the interveners against the plaintiffs, the named plaintiff appeals. Affirmed. J. S. Bracewell, H. H. Cooper, and Sam R. Merrill, all of Houston, for appellant. Boyles, Brown & Scott, of Houston, for appellee Roberts. Baker, Botts. Parker & Garwood and Rodman S. Cosby, all of Houston, for inter veners. GRAVES, J. With only two interlineations adding details, so much of the statement affecting this cause as is immediately hereinafter copied, and which both other litigants concede to be substantially correct, is taken from appellant's brief. Dickerson and I. P. Poynor against the Har"This action was originally brought by W. H. be composed of E. Strauss and Elbert Roberts, risburg Shipyard, a copartnership alleged to seeking to recover an indebtedness of approximately $16,500, with a foreclosure of a chattel mortgage lien and a deed of trust lien on certain property, and seeking the appointment of a receiver for the purpose of taking charge of one seagoing barge in an incompleted state and completing the same; the petition being filed on April 30, 1919. Upon this petition and application a receiver was appointed in the person of one Herman Parsons, and under the direction of the court receiver's certificates were 4. Partnership 214-Pleading alleging assumption of debts in consideration of transfer of interest in partnership held to set out agreement with sufficient particularity. An answer by defendant, sued as a part-issued, and the construction of the barge conner, alleging that plaintiffs had agreed to pay the indebtedness which he owed, as shown by his letter to plaintiffs' agent, in consideration of defendant's transfer to them of his interest in the partnership, set out the agreement with sufficient particularity. 5. Trial 140(1)-Inconsistencies in testimony do not take from jury right to determine credibility of witness. Even if there were some apparent inconsistencies in the testimony of a witness, that did not take from the jury the right to pass upon the credibility of that witness or make his testimony insufficient to support a finding by them of the agreement to which he testified. 6. Partnership 239(3)-Transfer of interest held sufficient consideration for assumption of debts for which retiring partner was liable. The transfer by a retiring partner of his interest in the partnership is sufficient consideration to support an agreement by the transferees to pay debts for which the retiring partner was liable as member of the partnership. tinued until its completion, and was thereafter sold for a sum of money sufficient to discharge the receiver's certificates and the lien of the Burton Lumber Company, who furnished material for the construction of the barge, but no other funds were realized. Subsequently a judgment was taken by the plaintiffs against the Harrisburg Shipyard, and E. Strauss for their claim, and a report of the receiver received and he discharged; that said case was continued on the docket for the purpose of determining the rights of the defendant Elbert Roberts and certain interveners. "The defendant Elbert Roberts filed an answer May 18, 1920, in which he urged a general demurrer, a general denial, and a special answer that the contract made and entered into between himself and E. Strauss with the plaintiff was in regard to a barge to be constructed, and that plaintiffs were to advance a sum not in excess of $12,000, and that $4,500 of the amount to be advanced by the plaintiff was to be applied to the payment of the obligation of the Harrisburg Shipyard, and that subsequently the plaintiffs and E. Strauss had, without the knowledge or consent of this defendant, changed the barge by building one of Appeal from District Court, Harris Coun- larger dimensions and one that required the adty; Ewing Boyd, Judge. vancement of a larger sum of money, and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-53 that he was thereby relieved from said contract, and further pleaded that from and after the 1st of April, 1919, he was relieved of any liability in connection with or concerning the same, for on or about that date-pursuant to the terms of a letter of that date from him to E. Strauss, who was acting for plaintiffs-the plaintiffs had assumed certain obligations for which he was liable as one of the members of the partnership of the Harrisburg Shipyard, and that one of these debts was to the Texas Lumber Company and the other to the Burton Lumber Company, and that he was relieved of all obligations, and that under such agreement he was relieved of his obligation on those items (setting up the specific ones mentioned in his letter to Strauss of April 1, 1919), and that he had surrendered all right and interest he had in said Harrisburg Shipyard to them, and then pleaded by way of cross-action that he was entitled to recover over against the plaintiffs on such facts. "The Texas Lumber Company filed its second amended intervening petition on May 26, 1921, in which it alleged that E. Strauss, I. P. Poynor, W. H. Dickerson, and Elbert Roberts were liable to defendant for the sum of two judgments obtained in the county court at law against E. Strauss and Elbert Roberts, one in the sum of $569.49 and the other in the sum of $359.72; and that after the rendition of said judgments and about the 1st day of April, 1919, the plaintiffs, I. P. Poynor and W. H. Dickerson, in consideration of the surrender and transfer by Elbert Roberts of his interest in the Harrisburg Shipyard, had assumed and contracted to pay the indebtedness of such intervener, and that they had thereby become liable and bound to pay the same. The Burton Lumber Company also filed its first amended plea in intervention on May 23, 1921, in which it also alleged that it was the owner of certain notes executed by E. Strauss and Elbert Roberts, and that the plaintiffs, I. P. Poynor and W. H. Dickerson, had agreed, contracted, and bound themselves to assume and become liable for the payment of the same in consideration of the surrender and relin quishment by said Elbert Roberts of his interest in said Harrisburg Shipyard, and his interest in the copartnership venture in com pleting said barge, and that it was thereby entitled to a judgment against plaintiffs in said "1. Did plaintiffs, I. P. Poynor and W. H. Dickerson, authorize E. Strauss to make an agreement with Roberts whereby Roberts would relinquish his interest in the Harrisburg Shipyards and Poynor and Dickerson would assume the payment of the debts set out in the You will answer, letter dated April 1, 1919? "They did,' or, "They did not,' as you find the facts to be. To which the jury answered, "They did.' "2. Did said Poynor and Dickerson, or the said Poynor, Dickerson, and Strauss, acting through Strauss, purchase the interest of Elbert Roberts in the Harrisburg Shipyard, and in payment therefor Poynor and Dickerson assume the payment of the debts listed in the letter of April 1, 1919? You will answer, "They did,' or, "They did not,' as you find the facts to be. To which the jury answered, "They did.' "After the rendition of their verdict the court entered a judgment in favor of the plaintiffs against E. Strauss in the sum of $16,561, that plaintiffs take nothing as against the defendant Elbert Roberts, and, after stating a finding by the court to the effect that on April 4, 1919, the plaintiffs, I. P. Poynor and W. H. Dickerson, purchased the interest of Elbert Roberts in the Harrisburg Shipyard, and in payment therefor the said I. P. Poynor and W. H. Dickerson assumed payment to the parties named of the debts listed in the letter of April 1st, from the said Elbert Roberts to E. Strauss, then adjudged that the Texas Lumber Company recover a judgment against the plaintiffs, I. P. Poynor and W. H. Dickerson, jointly and severally, in the sum of $1,012.83, with interest from date at the rate of 6 per cent. per annum, and that the said Burton Lumber Company recover a judgment against the plaintiffs, I. P. Poynor and W. H. Dickerson, jointly and severally, in the sum of $2,703.06; and further adjudged that as to certain indebtedness due and owing to H. Masterson and the First National Bank of Houston, Tex., upon payment of the same by the said Elbert Roberts, he should be entitled might pay thereon, to be recovered of I. P. to reimbursement for such sum or sums as he Poynor and W. H. Dickerson jointly. "The plaintiffs, I. P. Poynor and W. H. Dickerson, filed a motion for new trial, and the plaintiff W. H. Dickerson amended said motion for new trial, which was presented to the court and overruled on September 21, 1921, and notice of appeal given, and thereafter, on Septem ber 21st, an appeal bond was duly filed, and the case brought to this court for revision of the errors committed by the trial court." The defendant Roberts did not deny under oath the partnership alleged by plaintiffs to have existed in January, 1919. between himself and E. Strauss under the name of the Harrisburg Shipyard, but admitted that it did so exist at that time, pleading in confession and avoidance of the liability that relationship would have imposed upon him the above-mentioned assumption by the plaintiffs of the indebtedness of the partnership, in consideration of his relinquishment to them of all his interest in the concern. (248 S.W.) [1, 2] As the quoted statement has shown, troverted by any one, but Roberts himself only one of the plaintiffs below, W. H. Dicker- admitted in his answer that he was a memson, has appealed from the judgment so ren- ber of the partnership at the time of the ocdered. Appellant's first contention is that the currence of the matters out of which the general demurrer of the plaintiffs below to plaintiffs' claim arose, that is, in January, the alleged agreement on their part to pay 1919; but he went further, and, by way of the debts of Elbert Roberts, as pleaded by plea in avoidance of the liability that rehim and the two interveners, should have lation would otherwise have imposed upon been sustained on the ground that it was him, averred that he had later relinquished within the statute of frauds, as being: First, his interest in such partnership to the plainan oral contract on the part of Roberts to tiffs in consideration of their assuming the convey to plaintiffs his interest in the Har- debts listed by him in his letter of April 1, risburg Shipyard, which was admitted to con- 1919, to Strauss, and that in consequence sist principally of real estate; and, second, he was thereafter relieved. The jury havan oral promise to answer for the debt, de-ing, on sufficient evidence, found such agreefault, or miscarriage of another. The posi- ment to have been made, plaintiffs were no tion is not well taken. In the first place, the longer entitled to hold Roberts liable to them record fails to sustain the assertion that the by reason of his original membership in the shipyard "was admitted to consist principally firm. It follows also, as a matter of course, of real estate"; on the contrary, there is that in such circumstances he was in no neither pleading nor proof by any litigant position to deny under oath the existence of that it owned any real estate at all, and so the partnership in manner and form as alnone that Roberts' interest therein included leged by the plaintiffs. any. The only real estate mentioned in either pleadings or proof-and this came from the plaintiffs themselves-was that owned by E. Strauss individually, and not by the ship yard as a partnership. In the second place, the agreement of plaintiffs, Poynor and Dick-veners should have been sustained, the erson, to pay the debts due from and owing by Roberts, as alleged by the latter and the two interveners. clearly amounted to an original undertaking on their part to pay Roberts' debts to the third persons named in the letter of April. 1, 1919, for a sufficient consideration, that is, the surrender by him to them of his interest in the shipyard part-partnership, but had not alleged: First, that nership, and hence, though oral, was not within the statute of frauds. The rule on this subject is very succinctly stated by our Commission of Appeals in the recent case of Bain v. Lovejoy (Tex. Com. App.) 234 S. W. 1096, as follows: "The validity of a parol assumption of and promise for a valuable consideration to pay the debt of another has been uniformly upheld by the Supreme Court, and is the settled law of this state." [4] Appellant's third, fourth, fifth, and sixth propositions on the appeal urge that certain demurrers and exceptions presented by himself and his coplaintiff below to the answers of appellee Roberts and the inter grounds of these objections being that Roberts had merely set up the letter from himself to Strauss of April 1, 1919-together with the plaintiffs' alleged assumption of the debts therein listed-as the basis of his claim that they had relieved him of any further liability for the debts of the shipyard any actual release had been obtained; second, that either of the plaintiffs had in writing either acknowledged such agreement or taken possession of any property under it, only that Roberts ceased longer to have any interest in the business; third, the letter of April 1st, so relied on, showed on its face that it was a mere proposal-an unexecuted agreement-and there was no specific averment made as to the performance of the conditions mentioned therein; fourth, there was neither allegation that either of the plaintiffs had [3] It is next asserted that the plaintiffs in writing assumed to pay such debts, nor below were, as a matter of law, entitled to that Strauss, as their agent had done so, nor judgment against Roberts as a member of that they had either taken possession of or rethe Harrisburg Shipyard partnership, inas-ceived a conveyance to any property from much as they had, in their pleadings, alleged Strauss and himself to be partners under that name at the time of the transaction they complained of, January, 1919, and had pursuant thereto been awarded a recov-leged in substance an agreement whereby ery against the partnership; Roberts not having under oath denied the existence of such partnership. This deduction that such a legal right existed absolutely as the result of Roberts' failure to so deny the partnership is a non sequiter from the facts here appearing. The fact was not only not cou Roberts under such agreement. We do not think error in the overruling of these exceptions is shown; as preceding statements have indicated, the answer of Roberts al Dickerson and Poynor agreed to pay the indebtedness Roberts owed, as shown by his letter of April 1, 1919, to their agent Strauss, in consideration of Roberts' relinquishment to them of his interest in the copartnership enterprise, the letter in full being as follows: interest in the unfinished barge and in the then expected profits of the enterprise. "April 1, 1919. "Mr. E. Strauss, Harrisburg, Texas-Dear Sir: As heretofore stated to you, upon my being released from indorsements on the following obligations: H. Masterson H. Masterson First National Bank.. Texas Lumber Company four notes on $4,750 00 600 00 3,750 00 "I will have no further interest in the assets or earnings of the Harrisburg Shipyard. "Yours truly, [Signed] Elbert Roberts." Through several propositions, appellant further assails the judgment on the ground that the evidence was insufficient to support it and the verdict of the jury on which it rested in a number of particulars; but, after a careful review of the statement of facts, we are unable to hold that any such condition is shown. The evidence is voluminous, and it is not deemed essential that it be restated here. Suffice it to say that, in our opinion, it furnished sufficient support for the verdict and judgment. despite what appellant points out as some apparent inconsistencies in his statements, there was nothing to take from the jury the right to pass upon his credibility any more than there was as concerned any other witness; furthermore, there was undoubtedly much of corroboration and support of him brought out in the testimony as a whole. There was upon the entire case as projected by these answering pleas a clear question of fact for the jury, and, as above indicated, they having resolved it adversely to appellant, this court is left without authority to disturb that result. [5] Appellant's insistence that it did not appears to rest mainly upon the view that the This defense was elaborated by further witness Strauss, who, by deposition, testified averments to the effect that the plaintiffs had with positive detail as to the making of the approached defendant for the purpose of agreement in all material respects as claimed purchasing his interest; that verbal negoti- by Roberts and the interveners, was so disations were had by Strauss acting for Poy-credited before the jury as to entitle this tesnor and Dickerson with Roberts; that the timony to little or no credence; but there is letter of April 1, 1919, was delivered to no justification for any such assumption; Poynor and Dickerson through Strauss; the acceptance by Poynor and Dickerson of the agreement, which constituted the contract; the fact that immediately thereafter in conformance with the agreement, he surrendered all his interest in the Harrisburg Shipyard to plaintiffs; that they immediately assumed absolute control, custody, and supervision of the business, and continued to manage the same; that Roberts had nothing to do with the business after April 1, 1919; that, acting on the agreement, plaintiffs had so arranged the bank account at the American State Bank of Harrisburg that the money could What has already been said adversely disbe released from the bank without the signature of Roberts, which had theretofore been poses of the contentions under the tenth necessary; that after his severance of his proposition that the judgment as entered connection with the partnership, additional was not properly supported by the pleadings money was put up by the plaintiff's for the likewise hold there was no material or harmbusiness, and that the business was thereaft-ful variance between their several allegations er continued by them and under their abso- in such pleadings and the proof they made lute control; that the property and the pos- in support of the same. of the defendant and the interveners; we the two interveners, on the ground that there was no evidence showing appellant to have received any consideration or property from defendant Roberts in return for his assumption of the debts of Roberts to each of the interveners, are likewise without merit. As has been hereinbefore indicated, we think ample consideration for the assumption agreement by Dickerson and Poynor was shown, and that the evidence in this respect fully justified, if it did not require findings in favor of the claims of the interveners. session of same was delivered to the purchas- [6] Appellant's concluding propositions, ers Poynor and Dickerson. again asserting a lack of support in the eviAs appears from the introductory state-dence for the separate awards in favor of ment, both interveners in substance also set up this assumption agreement between plaintiffs and Roberts as affecting the debts due them, further averring that it was made for their benefit, and that they were entitled to sue thereon. We think the agreement of the plaintiffs thus declared upon by all the other parties was in all respects a legal one, and that it was set out with sufficient particularity to justify the trial court in overruling the demurrer and exceptions so leveled at it; while there was no express statement as to whether the agreement was written or verbal, it seems to us from the declaratory pleadings upon it as a whole that it contemplated the relinquishment by Roberts to Dickerson and Poynor of personal property; that is, of his All the assignments of appellant have been given consideration, but under the conclusion that none of them point out prejudicial error, the judgment has been affirmed. Affirmed. (248 S.W.) the payment of the fine and costs he was deMOORE, Police Judge, v. CITY OF NEW- livered to the jailer. After his incarceraPORT et al. (two cases). (Court of Appeals of Kentucky. Feb. 13, 1923.) 1. Pardon 4-Lawmaking body can confer on mayor power to pardon violators of ordi nances. Regardless of whether the power given by Ky. St. § 3111, to mayors of second class cities to discharge from confinement any person convicted and sentenced in the police court is vested in the board of commissioners of a city under the commission form of government by Ky. St. § 3235c12, the board of commissioners, which, under section 3235c17, is the lawmaking body of such city, can grant to the mayor or other executive officer the power to pardon or release persons convicted of violations of the ordinances of the city, since the Governor has no power to pardon such persons, and such power may be delegated by the lawmaking body, in the absence of a provision in the charter. 2. Pardon 4-Power is not inherent in any department or officer. The pardoning power is not inherent in any department or officer of the state, and the people may lodge it in any department they see fit or in a board of pardons. 3. Pardon 4-Mayor cannot pardon violator of state law convicted in police court. Though the board of commissioners of a city under the commission form of government could confer on the mayor power to pardon those convicted of violating the ordinances of the city, it could not give him power to pardon or release one convicted under Ky. St. § 1977, for gaming, though the conviction was in the police court of the city. tion in the jail Joseph Hermann, mayor of the city of Newport, issued and caused to be served upon M. McNamara, jailer of the said city, an order or pardon directing the said jailer of the said city to release the said Henry Sutt from custody, and in pursuance to said order or pardon issued by the said mayor the said jailer of the said city did release and discharge the said Sutt that day from custody, and he has not, by imprisonment or otherwise, satisfied said fine and costs. In the second case above styled, Juanita Montgomery was duly charged in the police court of Newport with the offense of disorderly conduct, under a municipal ordinance, and, being tried, was found guilty, her punishment was fixed at a fine of $100 and 30 days in jail. The trial took place on the 17th of July, 1922, and she was immediately thereafter committed to the custody of the said jailer of said city. On the 26th of July following, Joseph Hermann, mayor of the said city of Newport, issued an order or pardon, which was later served upon the jailer of the said city, directing the said jailer to release the said Juanita Montgomery from custody. Whereupon the said Juanita Montgomery was released from custody, and has not satisfied the said fine, imprisonment, and cost. After the said defendants had been discharged by the jailer pursuant to the orders and pardons issued by the mayor, the attorney for the county of Campbell and the solicitor for the city of Newport, by separate motions on behalf of the Commonwealth of Kentucky and the city of Newport, moved Appeals from Circuit Court, Campbell Matt Moore, police judge of the said city to County. Two actions for mandamus by the City of Newport and the Commonwealth against Matt Moore as police judge. From judgments issuing the writs, defendant appeals. Judgment reversed in one case, and affirmed in the other case. L. S. Shepler, of Newport, for appellant. Brent Spence and Conrad Matz, both of Newport, for appellees. SAMPSON, C. J. The foregoing cases involve similar questions, and will be considered together. The facts are in substance the same, except one of the appellants was convicted under a city ordinance and the other under a state statute. On the 5th of September, 1922, Harry Sutt was charged in the police court with the offense of gaming, under section 1977, Kentucky Statutes, and upon a trial was found guilty, and his punishment fixed at a fine of $20 and cost. In default of forthwith issue a capias pro fine for each of the said discharged defendants, which said motion the judge of the police court overruled, and declined to issue said capiases, whereupon these two actions were brought in the name of the commonwealth and of the city of Newport against appellant Matt Moore, as police judge of the city of Newport, and Sutt and Montgomery, respectively, praying a writ of mandamus, directing Matt Moore, police judge and ex officio elerk of the said police court, to issue a capias pro fine or execution against the said Juanita Montgomery and Harry Sutt. The appellant, Matt Moore, police judge, as defendant in the said actions, filed his answer, by which he denied the averments of the petition that Joseph Hermann, as mayor of the city of Newport, had no right or authority to order the jailer of Newport to discharge or release the said two prisoners, and had no right to pardon the said prisoners for the offenses of which they had been con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |