H. D. Ford and G. W. Brown v. D. McBryde, 45 Tex. 498

Moore, Associate Justice. The instructions of the court to the jury, as well as the charge given at the request of the appellee, are, to some extent, subject to criticism for want of clearness in expressing the legal proposition they were undoubtedly intended to embody.

This, probably, arises in a great degree, especially in the charge given at the request of appellee, from a slight inaccuracy in the copy of it in the transcript, or through mistake in the hurry and confusion of the trial in the court below, in writing the word “ than ” instead of “ that,” which was evidently the word intended to be used by the counsel who' drew it.

Construing the instructions in accordance with their fair and reasonable import in the light of the evidence, and as they must have been understood by the jury, it cannot be said that they were calculated to mislead the jury or to do appellants any injustice. If the instructions which were given were not so full as appellants thought they should have been, it was their duty to have supplied the deficiency by asking of the court additional charges.

All those which they requested were given; and we must conclude that no further instructions were believed by them to be necessary to enable the jury to reach a proper conclusion on the issues before them. Under there circumstances, they have no right to complain of the action of the court, unless there was positive error in the instructions as given, or it appeared that some injury to appellants had resulted from them. This there is no reason to suppose is the fact.

The only debatable questions in the case were: "What were the terms of the contract between appellee and the appellant Ford under which the drove of beeves in question was driven by the latter to Kansas, and whether the instrument relied upon by appellants, signed by Ford and appellee, and witnessed by Brown, properly set forth this contract and was binding upon appellee ? The evidence upon these questions was conflicting and contradictory. And in the absence of any error in the charge of the court, we must regard the verdict of the jury as conclusive.

The alleged newly-discovered evidence is not of a character calculated to change the verdict, if it had been before the jury. The appellee’s right to recover does not depend upon the abstract proposition whether he and Ford, as to third parties, or even between themselves, were partners in the drove of beeves purchased with the money advanced by him. But conceding that they were partners, the question still remains, what were the terms, stipulations, and conditions of the partnership as between themselves ?

For it certainly cannot be doubted that, as between the parties themselves,-the active and managing partner may bind himself, on a dissolution of the firm and settlement of the partnership business, to repay the capital advanced by the other partner, whether profits are made or not, and even although the capital so advanced may be entirely lost in. the prosecution of the partnership enterprise. The objection by appellant Brown, that he did not borrow the money from appellee, and was not a party to the contract between him and Ford, is not worthy of serious consideration.

The proof shows, and both he and Ford swear, that they were general partners at the time in the cattle business, which, it appears from the record, was under the management and control of Ford; and Brown himself testifies that he was jointly interested with Ford in his (Ford’

s) half of this very drove. Unquestionably, then, he was bound by and responsible on whatever contract Ford may have made within the fair and legitimate scope of his authority. It also clearly appears that he was not only cognizant of the contract between Ford and appellant, but, as has been just said, claimed to be interested in the beeves purchased under it by Ford with appellee’s money.

The facts stated in the petition, if sustained by the evidence,-entitled appellee to a judgment against both of the defendants. ■ The general verdict of the jury affirmed their truth, and a judgment therefore was properly rendered upon the verdict against them both. There being no error in the judgment, it is affirmed. Affirmed.