Carroll v. Evans , 27 Tex. 262 ( 1863 )

Bell, J.

We are of opinion that there is no error in the judgment for which it ought to be reversed. The allegations of .the amended petition filed March 15, 1859, are very full to the point that the assignment to Weddington was only intended to enable him to collect a debt due to him from Evans, was not an absolute conveyance of the partnership property, and was not so understood or acted on by any of the parties; that Carroll understood the assignment to have been made only for the purpose of satisfying the debt due to Weddington by Evans, and that the partnership between Evans and Carroll continued as well after the so-called assignment to Weddington as before. These allegations are sustained by the evidence of Weddington and by the acknowledgments of Carroll, as late as the year 1855, that the stock was partnership property between himself and Evans. .

We are of opinion, however, that the court below took the proper view of the legal effect of the facts proved; that the assignment to Weddington was a dissolution of the partnership between Evans and Carroll, and that Carroll then held the property in trust for himself and Evans, and that limitation would not run against Evans until Carroll renounced the trust and claimed the' property as his own against Evans. • On almost all the points submitted to the jury, there was conflicting evidence. But we are of opinion that it cannot be maintained that the verdict is not sustained by the testimony. There was evidence of sales of stock, to a greater amount than was found by the verdict, and the jury were warranted, from all the circumstances in proof before them, in finding that it was partnership stock, or stock belonging to Carroll and Evans jointly.

It was alleged in the various petitions, that there was the usual and customary increase of the stock, and the proof was sufficient to show that the stock in the possession of Carrol had increased so as to make the business a very profitable one. Under these circumstances, while a jury ought not to proceed upon mere theories in ascertaining a result, they ought not to be absolutely precluded from adopting some rule of computation, in accordance with the facts proved, by which a result might be attained. It was in the power of Carroll to show what number of stock he had in possession; he might have done this without prejudice, and the question whether they were his individual property, or joint property between himself and Evans, would have remained. Under all the circumstances of the case, we think the verdict of the jury ought to be sustained.

We do not feel at liberty to say that the oral instructions given to the jury, or the remark made to them by the presiding judge, furnishes a sufficient ground for the reversal of the judgment. The judge being unwilling to discharge the jury, in view of the fact that the case was upon trial for the third time, might not improperly suggest to them that a careful consideration of the evidence would enable them to find a verdict, and this was, perhaps, all that was meant by the judge, and all that his remark fairly imported.

We doubt the correctness of the judgment, in that it is for the value of the interest of Evans in the stock. The judgment ought perhaps to have, been for the delivery of the stock, or for the value in the alternative of a failure to deliver. But this error, if it be one, is not reached by the assignment of errors, and we do not therefore feel under obligation to reverse the judgment on this ground.

The judgment of the court below is affirmed.

Judgment affirmed.