Van Alstyne v. Bertrand , 15 Tex. 177 ( 1855 )

Wheeler, J.

The objection to the admissibility of the evidence,' that it did not conform to the allegations of the answer, we do not think well founded. Although every material, traversable matter of fact, relied on by a party, must be averred in pleading ; yet it is never necessary to allege those circumstances which are but the evidence of the facts on which the party relies as constituting his right. The simple allegation of the fact is suEcient, without relating all the minute circumstances which do but conduce to prove the truth of it. (Wells v. Fairbank, 5 Tex. R. 582.)

The objection to the want of suEciency of the evidence to support the defence is entitled to more weight. The firm of Austin & Bertrand received the note on Thomas and others. They became thereby accountable to the firm of Austin & Edrington only for the indebtedness to that firm of Baylor, which it was intended to pay. The excess of the note, above that debt, was theirs, to dispose of as they saw proper; and that excess was certainly a suEcient consideration, passing to the firm of Austin & Bertrand, for the note given to Baylor, of which the plaintiff afterwards became the holder. If the assent of Bertrand to the purchase of the note on Thomas was necessary to bind him, that assent is suEciently evidenced by Ms joining in a suit and recovery upon the note. What disposition he may have seen proper to make, or suffer to be made, of the proceeds of the judgment, after satisfying the demand of Austin & Edrington, was a matter of no concern to the plaintiff. If Bertrand saw fit to allow his partner to dispose of it in the payment of his own individual debt, the rights of the plaintiff were not affected by such disposition. The consideration of the note, held by the plaintiff, passed to the firm of Austin & Bertrand, and the evidence therefore did not support the plea, or authorize a verdict for the defendant, even though the plaintiff had been chargeable with notice of the consideration.

It is not questioned that the firm of Austin & Bertrand were legally liable for the payment of the note, in the hands of the plaintiff, as an innocent holder without notice of the consideration. And it can admit of as little question, that the legal liability of the firm, was a sufficient consideration to support a promise or contract founded thereon by the firm. That one partner may bind the firm by contracts made in liquidation and discharge of the legal liabilities and debts of the firm, will not be disputed. The liability of the firm of Austin & Bertrand, upon the note held by the plaintiff, was a sufficient consideration for the giving of the draft on which this suit is brought; and there can be no question that it is binding upon that firm. The verdict, therefore, was manifestly contrary to law and the evidence; for which the judgment must be reversed and the cause remanded.

Reversed and remanded.