Pennington v. Fleming , 212 S.W. 303 ( 1919 )

Fleming sued appellant, Pennington, and appellee W. P. Alexander, upon an open account for goods, wares, and merchandise, sold and delivered, alleging that defendants were partners, and that the items in the account were sold to the partnership. Pennington, under oath, denied the partnership, and further pleaded the statute of frauds. He also asked judgment over against Alexander for any judgment which might be rendered against him upon the theory that the debt sued upon was the personal debt of Alexander, who was primarily liable therefor. The account was carried in the name of Alexander upon Fleming's books. The case was tried without a jury, and judgment rendered in favor of Fleming against Alexander and Pennington, and that Pennington take nothing by his cross-action against Alexander.

Opinion. 1. No findings of fact or conclusions of law having been filed by the court below, the judgment must be sustained if there is sufficient evidence to support the same upon any theory of the case.

2. There is no dispute as to the items of the account nor of the prices charged therefor. An examination of the record discloses an admitted partnership between Alexander and Pennington, and the evidence is sufficient to support a finding that the debt was a partnership debt. It is shown that various items of the account were personally obtained by Pennington, and that he had same charged to the account. Without detailing the evidence at length, we conclude that it was sufficient to support the finding indicated.

3. The debt being a partnership one, the statute of frauds has no application.

4. Since it must be presumed that the court found the debt to be a partnership one, Pennington could not obtain Judgment over against Alexander without going into a settlement of the partnership accounts. This was not attempted to be done, and it would not in this suit have been proper so to do.

Judgment over against Alexander was therefore properly refused. Lockhart v. Lytle, 47 Tex. 452; O'Neill v. Brown, 61 Tex. 34.

Upon the views expressed, the assignments are all without merit.

Affirmed.