Sublett v. Kerr's Ex'ors , 12 Tex. 366 ( 1854 )

Wheelek, J.

The only question presented by the record which is deemed to require notice, is as to the propriety of the ruling of the Court in excluding the partnership agreement on which the suit was founded. It does not appear by the bill of exceptions on what ground the instrument was excluded. But the counsel for the respective parties concur in placing it upon the sole ground of variance between the instrument described in the petition and that offered in evidence. The petition alleges that the plaintiff's and defendant, on a day named, (the same as the date of the instrument,) “ formed a partner- “ ship for the purpose of purchasing and locating a headright “ certificate on a tract of land then vacant and lying on the “ south-west bank of the Sabine river, adjoining the lands of “ Richard Haley, junior; which agreement of partnership was “ then and there reduced to writing, and signed and sealed by “ the parties, and delivered into the possession of the said 66 Philip A. Sublett by the consent of all the said parties for safe keeping ; which said agreement of partnership is here 4‘to the Court shown marked (A.) Your petitioners further 4‘ represent, that by the terms of said agreement each one of “ the parties thereto was to bear an equal share of expenses incurred,” proceeding to state the substance of the agreement, according to its legal effect. Though made proferí of, it was not filed; and when offered in evidence, appeared to be an agreement between the parties of the purport of that described in the petition, and commencing with the recital that the parties “ have this day agreed to form a partnership for the pur- “ pose of jointly purchasing and locating a headright to a “ parcel of land lying on the Sabine river, each one of the “ parties agrees,” &c.

The variance, it is insisted for the appellee, consists in this, that the description of the locality of the land in the deed of partnership is variant from that contained in the petition.

The force of the objection is not perceived. In stating the subject matter of the partnership agreement, the pleader was not seeking to set forth, or describe the terms or contents of the agreement. He described the locality of the land, in order to identify the subject matter of the contract with greater certainty than that which was afforded by the contract itself. But this description of the local situation of the land was not, and did not profess to be, given by way of describing the tenor or purport of the contract. It was, it is true, a descriptive averment; but it was descriptive merely of the locality of the subject matter of the contract; not of the contract itself. If the contract offered in evidence had described the land as situated in a different locality, showing that it related to a different subject matter from that stated in the petition, it might properly have been excluded for the variance, or want of relevancy. But it was not a ground for excluding the evidence, simply that it did not contain as full a description of the subject matter of the contract as that contained in the petition.

But it is insisted that this ruling is not subject to revision because there is in the record no statement of facts. This case is not analogous to the case cited in support of the agreement, (8 Tex. R. 174.) There it was proposed to revise the judgment upon the merits. Here it is proposed to revise a ruling of the Court by which the party was, in effect, deprived of a hearing upon the merits of his case. The evidence excluded was the foundation of the action. It could not be supplied by other evidence. It would have been idle for the plaintiff to have proceeded to introduce evidence, when the foundation of his right to recover had been thus swept away.

We are of opinion that the Court erred in excluding the instrument offered in evidence, and that the judgment be reversed and the cause remanded.

Reversed and remanded.