Charles Lewis v. W. L. Davidson's Executor, 39 Tex. 660

McAdoo, J. On rehearing, we have deemed it prqper to set aside the order dismissing the cause, because of the original non-filing of a cost bond. We find there is a good writ of error bond, and though irregularly filed there is now a cost bond. We think, therefore, that justice requires that the cause be examined on its merits. This was a suit upon two notes, of date December 23, 1867, each for the sum of $3443.11, and due respectively in thirty and sixty days. These notes were signed “ W. T. Austin & Co.,” and were payable to the order of W. L. Davidson.

It was charged in the petition that the notes were made by W. T. Austin and the plaintiff in error, Lewis. Austin in his answer admits his liability on the notes. Lewis pleaded non est factum; that he was not a member of the firm of W. T. Austin & Co., and that he was in no manner connected with W. T. Austin at the time the notes were executed, and that the notes were without consideration as to him; admits that for a time, anterior to the execution of the notes, he had been in business with Austin under the firm name of W. T.

Austin, Lewis & Co., but he avers that the consideration of these notes' did not enter into the copartnership affairs of himself, and did not inure to his benefit. These pleas were under oath. In this state of the pleadings W. L. Davidson died. The appellee, as his executor, filed a succession of amended petitions, charging fraud and conspiracy, and ultimately prayed that the notes be canceled, and the action is shaped in equity on a running account and general business transaction. Lewis in amended answers pleads limitation ; that the' notes were taken by W. L.

Davidson in payment and satisfaction of the account, and was an acquittance of him of all claims which Davidson might have had against him by reason of his former connection with the firm of W. T. Austin, Lewis & Co.; that for a valuable consideration! Austin was to pay all the liabilities of the firm, and that' Davidson was advised of such obligation. It is assigned as error, that the court erred in overruling the exceptions to the plaintiff’s amended petition.. We do not think the court erred in so ruling. It is insisted that the court erred in excluding the testimony of W. T. Austin.

At the time this trial was held the law had not yet been passed removing the disability to testify on account of interest. We do not think it was error to exclude the testimony of a defendant when put upon the stand by a co-defendant. The third assignment of error is, “that the court erred in the first charge to the jury by directing the jury that the firm of W. T. Austin, Lewis & Co. were prima facie liable for a note signed by Austin & Co.; and by charging that the publication of the dissolution of the partnership of W. T.

Austin, Lewis & Co., connected with the-fact that this creditor of the old firm settled by taking the-notes of Austin & Co., were not sufficient notice to the-creditor (plaintiff herein), or his intestate, unless it was shown that plaintiff’s intestate had read such publication; thus directly stating the verdict they must bring in.” The first part of the charge was clearly en'or. The' charge would have been far nearer correct if it had been that W. T.

Austin, Lewis & Co. were prima facie not liable for a note signed “Austin & Co.” This error is of such a character as to render a reversal of the judgment imperative. The judgment is therefore reversed and the cause remanded. Reversed and remanded.