McKay v. Overton

Citations

• 65 Tex. 82
• 1885 Tex. LEXIS 314

Syllabus

<p>1. Limitation—Acknowledgment.—The indorsement on a note, “This is to certify that I renew the within note this 30th of April, A. D. 1882,” signed by the maker, is sufficient to prevent the note from being barred by limitation.</p> <p>2. Partnership—Settlement.—A suit might be maintained by the executrix of a deceased partner against another partner without having a settlement of the partnership affairs, if the obligation sued upon showed an indebtedness by defendant independent of the state of the partnership accounts.</p> <p>3. Same—Set-off—Limitation—Account.—In a suit by the executrix of one partner against the surviving partner on an open note, defendant claimed in set-, off that the deceased partner had lent certain partnership property to third parties, and agreed to be responsible to defendant for his half interest in the property loaned. Held:</p> <p>(1) Since the answer indicated that the agreement was that the deceased partner would account in the course of settlement of the partnership affairs for defendant’s half interest in the loaned property, the lapse of four years would not necessarily bar a remedy based upon that agreement.</p> <p>(2) That it was admissible for defendant to testify that the loaned property had not been returned.</p> <p>(3) Plaintiff was entitled to recover the value of the note, whether it was the result of a partial or final settlement of the partnership affairs, or arose from matters independent of the partnership.</p> <p>(4) Defendant could not claim against plaintiff's demand a set-off arising from a single partnership transaction. He should have prayed for a settlement of the partnership affairs, and that any sum found due him should be allowed as a set-off.</p> <p>4. Evidence—Exceptions.—A bill of exceptions to the exclusion of testimony should show that the testimony would have benefited the party excepting.</p> <p>5. Evidence—Expert.—A book-keeper can not be allowed to explain, as an expert, books not shown to have been