Devine v. Martin

Wheeler, J. Repeated decisions of this Court have settled [30] beyond a question, that the party in whom is the equitable title to a cause of action may maintain a suit thereon in his own name. It is true, the mere assignment or transfer of an account would not authorize a suit in the name of the assignee ; because the legal title cannot in that case, as in the case of a contract in writing, be transferred by assignment, Open accounts are not within the provision of the Statute, respecting the assignment of instruments in writing. (Hart. Dig. Art. 2522.) But in Merlin v. Manning, (2 Tex. R. 351,) it was held, (and in repeated decisions, since that case, the same principle has been maintained,) that the party having the equitable title to a cause of action may sue thereon in Ms own name, though the legal title be in another. And the reason is, that ours are Courts of equitable as well as legal jurisdiction, and, of course, have cognizance of equitable as well as legal titles, and causes. It follows, therefore, that the plaintiff, having purchased and become the equitable owner of the account sued on, might "vkell maintain the action in his own name. The ground mainly relied on, for a reversal of the judgment, is, that the proof does not establish that the appellant was a partner in the firm, or that the partnership between Mm,and his co-defendant subsisted at the date of this contract. The poof, however, is express and full to the fact of the existence of the partnership up to a date shortly before the purchase. And it is a well settled rule of evidence, that a partnership or other similar relation, once proved to exist, is presumed to continue, till it is proved to have been dissolved. (1 Greenl. Ev. Sec, 42; 2 Stark, Ev. 590, 688.) The partnership having been shown to have existed so shortly before the purchase, it devolved on the defendants-to show its dissolution, if, in truth, it had been dissolved. It is true, it is essential, in an action ex contractu, against partners, that the evidence of partnership should extend to all the defendants. Yet the utmost strictness of proof is not required ; because, where they are sued as defendants, the plain [31] tiff is not supposed to be equally cognizant of all the means whereby the fact of partnership may be proved. The fact, if it be so, that the appellant was not known to the salesman or vendors as a member of the firm, at the time of the purchase, will- not relieve him from liability as a partner, for the price of the goods. Partners are all liable for articles furnished for the benefit of the firm, though the vendor does not know of the existence of the firm, and though he supposes himself dealing with, and giving credit to an individual partner, by charging him alone in his books. (Reynolds v. Cleveland, 4 Cowen, 282.) It is very questionable whether it appears, with sufficient certainty, by the record, what was the ruling of the Court upon instructions asked by the parties respectively, to warrant a revision of the instructions. It seems clear, that whatever those rulings may have been, the jury could not legally have given a different verdict, from the evidence before them; and in such case we have repeatedly refused to reverse a judgment, for erroneous rulings upon instructions. Under the oft repeated decisions of this Court, and the principles it has uniformly maintained, upon that subject, the application for a new trial was manifestly insufficient and was rightly refused. If the defendants were not prepared for trial, they should have moved a continuance. Not having done so, they could not make their want of preparation for the trial, a ground of a new trial. We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.