Converse & Co. v. McKee , 14 Tex. 20 ( 1855 )

Lipscomb. J.

The appellants were plaintiffs in an execution against Bailey & McCown. The execution was levied upon a stock of goods in the store of Bailey & McKee. The latter, Jethro McKee, interposed a claim to the goods, so levied on, and gave bond under the statute, and tiñere was a trial of the right of property on an issue made up between the plaintiffs in execution and the claimant; which was found by the jury in favor of the claimant. The plaintiffs appealed. The first error assigned, is the overruling the objection to the competency as a witness, of Bailey, the defendant in the execution. That Bailey, the defendant in the execution, was a competent witness, is not now an open question; it was expressly decided in McQuinnay v. Hitchcock (8 Tex. R. 34.) The strongest objections urged in the written argument of the appellants’ counsel, go to the credibility and not to the competency of the witness ; and what degree of credit he was entitled to under the circumstances rested entirely with the jury.

The claimant offered in evidence a transcript, or balance sheet, taken from the books of the firm of Bailey & McKee, proven by Bailey and by Ewing a clerk in the firm. The plaintiff objected to the evidence ; and whilst the witness Bailey was testifying, notified the claimant to produce the books. The plaintiffs’ objection was overruled, and the evidence was received. To understand the correctness of the ruling of the Court, and the pertinency of the evidence, it must be borne in mind that McKee, who was claimant of the goods levied on, claimed as purchaser from Bailey, the defendant in the execucution, and was at the time of the purchase a partner in merchandize with Bailey; and the alleged object of the purchase was, to secure McKee from loss in having to pay all of the co-partnership debts; and to show that this loss would be the result, if the partnership goods were taken to satisfy the individual debts of Bailey. It is different, it is believed, from offering proof of the account of an individual debtor, introduced to establish the amount of his indebtedness. It is only expected by this means of the balance sheet, to approximate as nearly as circumstances will permit to the true condition of the firm. If the means of the firm were ample to pay off all the copartnership debts, besides the individual debt of one of its members, th', necessity of protection to the other partner would have had no foundation. The firm was alleged to have been dissolved at the time of the sale to McKee, and he assumed the payment of the partnership debts. It is believed to be the customary mode in use with merchants, of exhibiting the condition of their mercantile business. It is, however, not supposed that it presents a perfect and exact condition of the business. It is only an approximation to it. And it is impossible to know exactly what debts due the firm are good; some, supposed to be perfectly safe, may turn out entirely unavailable. Under such circumstances, the evidence, I believe, was admissible to the jury; how far reliable was for their determination. On application to the Court the plaintiff could, on a sufficient showing, have procured an order of the Court for the production of the books in Court; no such application was made, and the notice given to the opposite party whilst the evidence was being rendered to the jury, cannot be regarded as of any consequence.

The next error assigned is the refusal of the Court to give the fourth charge to the jury, asked by the plaintiffs; the charge asked and refused is as follows, i. e., “ That fraud- “ ulent intent may be presumed, from the fact of the vendor “ remaining in possession, and that the change of possession, “ necessary to rebut the inference of an intention to defraud “ creditors, must be substantial, bona fide and exclusive.” The charge manifestly if given would have been the resuscitation of the old doctrine of Edwards v. Harben, (2 Term R. 287,) then for the first time promulgated by Mr. Justice Buller, and which was not permitted to go unquestioned, at the time, and has been since repudiated in England, and by most of the State Courts of the American Union, that possession remaining with the vendor is fraud per se. We have reviewed this case of Edwards v. Harben in the case of Bryant v. Kelton & Uzzel, (1 Tex. R. 417,) and we ruled in conformity with Twyne’s case that possession remaining with the vendor was a presumption or badge of fraud, that it might be explained, and unhesitatingly repudiated the doctrine of fraud per se, and never expected that it would have been raised again in this Court.

The next error assigned calls in question the correctness of the charge of the Court in relation to the Sheriff’s levy. The plaintiffs endeavored to establish a levy on the goods prior to the purchase made by the claimant, and the Court charged the jury, “ that to constitute a valid levy, the Sheriff must have “ taken possession of the goods in some way ; a mere declara- “ tion by the Sheriff that he makes a levy is not sufficient, and “ he ought to take control of the entire goods of the firm when “he levies.” We regard this charge as fully sustained by the decisions of this Court in the two cases of Bryan v. Bridge, (6 Tex. R. 141,) and Portis v. Parker, (8 Tex. R. 25.) It may be proper here to notice that the charge of the Court, now complained of, was contained in the general charge to the jury, and no exception or objection taken to it at the time ; and if there had been anything in the objection, it might well be answered that it was not made in the Court below, and ought not to be heard here. I am aware that it has been supposed, that as the Judge is required to give his charge in writing, and as it is usual to file it with the papers of the case, any error apparent upon the record may be assigned, treating the opinion as a part of the record. Still, if all that be true, it would seem that the exception ought to be raised at the time the charge is given, because it would give the Judge an opportunity to modify or correct his charge if inadvertently he had fallen into an error. In this case, on this question, the charge of the Judge went further than the evidence would have required him to have gone ; it was in reference to a pretended levy, that could not for a moment be regarded as such on personal property.

The doctrine is too well settled to be now questioned, that partnership debts claim a priority of payment out of the partnership effects, before the individual debt of one of the members of the firm, and McKee, the solvent partner had a right to interfere and prevent the appropriation of the partnership effects to the payment of an individual debt of one of the members of the firm. The rule contended for by the appellants’ counsel, that creditors of the firm, alone, have a right to complain, is subject to the qualification, that the solvent partner has also a right to interpose, for his own protection, because he is liable for the whole copartnership debt.

There have been several points raised in the written argument of the appellants’ counsel, and pressed with great ability, but not regarded as essential to the decision of this case, and we have therefore omitted, noticing them farther than to be satisfied, that in none of them is there any ground for reversing the judgment, and it is therefore affirmed.

Wheeler, J. gave no opinion in this case.

Judgment affirmed.