Sessums v. Henry , 38 Tex. 37 ( 1873 )

Ogden, J.

This suit was instituted against all the appellants upon a draft drawn by S. H. Brooks on Sessums ■& Co. in favor of J. R. Henry, one of the appellees. The petition alleges in substance, that though the draft was executed by Brooks in his individual capacity, yet that it was given in part payment for the purchase money of a certain lot of cotton which was purchased for and on account of all the defendants below. And it charges all as the makers of the draft sued on, and seeks to hold all liable as such makers. There can be no doubt that where one person, acting in the capacity of agent or partner, with full authority from his principal, or copartners, in the purchase of property, gives a note or other obligation for the purchase money, all persons whom he represents will be equally bound with himself, as makers thereof, though that obligation be executed by himself alone, and particularly where the property thus purchased is received by and for the benefit of all. The allegations of the petition charge A. Sessums & Go. as the makers of the draft sued on by their agent S. H. Brooks. The answers to these allegations are a general denial, and a special denial in the form of a plea of non est factum, but which was not sworn to, and a plea of accord and satisfaction. The cause was submitted to a jury under instructions from the court, and a verdict and judgment were rendered for the plaintiffs.

It is contended for appellants that there is error in the-charge of the court, wherein it assumes that Sessums & Co. executed the draft, and casts the burden of proof upon them to establish a negative. But it is believed that Article 1443, Paschal’s Digest, fully authorized the-assumption complained of, and the instructions given. That article provides, that “When a petition, answer or other pleading, shall be founded, in whole or in part, on an instrument or note in writing, charged to have been executed by the other party, or by his authority, and not alleged therein to be lost or destroyed, such instrument, or note in writing shall be received as evidence, without the necessity of proving its execution, unless the party by whom, or by whose authority, such instrument or note-in writing is charged to have been executed shall file his affidavit in writing, denying the execution thereof.” Sessums & Co. are charged to have executed the draft by Brooks, acting under authority from them; and the statute declares that it shall be received as evidence of the execution and authority, unless the same be denied under oath. This was not done by appellants, and we-think the court did not err in the assumption of these facts, until the contrary was proven. It is ' however claimed that this statute refers only to those instruments where the name of the party sought to be charged appears-upon the face of the instrument. But a party who executes a written obligation may be held liable under it, as well if he signs it with a fictitious name as though he-signs his own; and where he authorizes another to sign he may be held liable under whatever name his agent may see proper to use. But the statute seems to settle that question by including all instruments which a party may execute or may authorize. And certainly if Sessums authorized Brooks to draw this draft,. as he did, the statute must apply to it, the same as though signed by Sessums & Co., or by Brooks as their agent. We are aware that a different rule was announced in Compton v. Stage Co., 25 Texas Sup., 78; but we are unable to reconcile that case with our statute, and are therefore inclined to think that the learned judge who delivered that opinion had the common law rule instead of the statute in his mind when he wrote. We can see no good reason why the rule of the statute should not apply to all parties, whether their names appear on the face of the instrument sued on or not, since in the one case the plea of non est factum denies the execution, and in the other the authority for the execution of the instrument. And we think the law as enunciated in Austin v. Towns, 10 Texas, 3, and Reid v. Reid, 11 Texas, 592, and in Prince v. Thompson, 21 Texas, 481, clearly applicable to this case, so far as a denial of- the authority of Brooks is concerned.

But appellees in this case might readily waive all their rights under the statute, and admit all that appellants claim, for their general or special denial, and take upon themselves the burden of proof; and yet their cause is thus far fully made out, for they prove the execution of the draft by Brooks, and the authority to draw by Sessums. They have thus far established by positive proof, by the defendants themselves, every material allegation in their petition, and therefore the instructions of the court could not have misled the jury in that respect, if the rulings upon the plea of non est factum were erroneous.

According to the testimony of Sessums, on the trial of this cause in the court below, S. H. Brooks, at the time of the execution of the draft sued on, was buying cotton in the interior of the State for the house of A. Sessums & Co., on commission, and was fully authorized to draw on that house to an unlimited extent for all such purchases; and the firm of A. Sessums & Co. was bound by its understanding with Brooks to pay all such drafts as he might draw. It is also proven beyond controversy by Sessums and Brooks that the draft sued on was drawn in pursuance of that understanding between Brooks and A. Sessums & Co., and was given for the purchase of cotton which was shipped directly to and received by them. And it is now claimed for appellees that though the draft was drawn by Brooks in his individual capacity, yet he was acting under and by virtue of the authority of his principals, and his acts were, in contemplation of law, their acts, and his obligations were theirs; consequently, A. Sessums & Co. executed the draft by their agent Brooks. The name by which a party enters into a contract is not, ordinarily, essential to make a good and binding obligation; neither is it always necessary that the names of all the parties in interest be subscribed to a contract or obligation in order to bind all. If, therefore, Brooks purchased cotton for the firm of A. Sessums & Co., under and by virtue of ample authority from them for that purpose, and in payment for the same executed the draft sued on, in compliance with that authority, then A. Sessums & Co. may be held liable for the payment of that draft, as the makers thereof, whether their names appear in the draft as drawers or drawees, or whether they appear there at all or not. The facts were all before the jury, and they found Brooks and Sessums & Co. liable on the draft as makers or drawers, and it is believed that the testimony in this respect fully authorized their finding.

Upon the plea of accord and satisfaction, the jury also found against the appellants. We are not so sure that their finding in this respect is as well supported by the testimony. The witness Brooks testified very positively to a full and final settlement of all liabilities on the draft. And yet there is some doubt cast upon the facts as testified to by him. There appears to be something unexplained in connection with his returning the cotton back to Adams & Hearne, strangers to the original contract, instead of the real owner. They were, according to the testimony, both in Galveston, and the cotton might as well have been delivered to Henry, the owner, as to-Adams, a stranger; and this proposed arrangement came from Brooks, who certainly ought to have had great interest in the delivery of the cotton to Henry, and the cancellation of his draft.

There was also testimony which tended strongly to discredit his statements on a very material point, in regard, to the discharge of himself and others on the draft. But these were questions of fact about which the jury should be better judges. They have decided against the appellants, and though upon the question of satisfaction the-record may present to our minds some doubts as to the correctness of the verdict, yet we would not feel justified in declaring their verdict contrary to the law and the facts as proven on the trial, and the judgment is affirmed.

Affirmed.