Congdon & Aylsworth v. H. W. Monroe & Co.

Gould, Associate Justice. Appellants, in their petition, alleged that H. W. Monroe and John Monroe composed the firm of H. W. Monroe & Co.; alleged a sale of goods to the firm, and, after praying for citation to defendants, prayed for judgment for their debt and for equity and general relief. The defendants filed separate answers, not verified by affidavit, denying the existence of the firm and denying the alleged indebtedness. Evidence was admitted, over the objection of appellants, establishing that there was no such firm as H. W. Monroe & Co., but that H. W. Monroe carried on business in his own .name. It appeared, also, that the goods were received by him, and that he admitted the debt. The charge of the court instructed the jury, that unless there was such a firm as H. W. Monroe & Co., composed of H. W. Monroe and John Monroe, to find for defendants; and accordingly there were verdict and judgment for defendants. Appellants’ first proposition is, that “ the court erred in admitting the testimony to prove no partnership, because the answer of defendants was not verified by affidavit of one or both of defendants.” The response to this proposition is, that the petition was not founded on any written instrument charged to have been executed by the firm, and that the partnership of defendants “was put in issue by the pleadings, without being sworn to.” (Cushing v. Smith, 43 Tex., 261; Fowler v. Davenport, 21 Tex., 634.) But the charge of the court prohibited the jury from finding against either of the defendants, unless their liability as a firm had been established. This charge, however correct, if tested by “the rigid system of the common law as to forms of action,” asserts a rule of pleading and practice which this court has declared to be “ contrary to the whole current of our practice and decisions.” (Willis v. Morrison, 44 Tex., 33.) The question came up directly in that case, and was decided contrary to the position taken in the charge under consideration. On the authority of Willis v. Morrison, the judgment is reversed and the cause remanded. Reversed and remanded.