Miller v. Marx & Kempner

Citations

• 65 Tex. 131
• 1885 Tex. LEXIS 325

Syllabus

<p>1. Partnership—Wife—Liability—Husband.—A married woman invested the proceeds of the sale of her separate estate in a partnership, and carried on a mercantile business under articles of partnership. Suit was brought against the husband, the wife, and the other partner, as members of the firm, on a note executed by the firm. Held:</p> <p>(1) That a wife cannot become a partner in business either with her husband or any one else. (Wallace v. Finberg, 45 Tex., 35 ; Cox v. Miller, 54 Tex., 16.)</p> <p>(2) Neither the wife nor the husband could invest her separate property in a mercantile business, and thereby become entitled to the profits arising therefrom as part of the separate estate.</p> <p>(3) Her separate estate could not be°subjected to any of the debts of such an attempted partnership, though she would doubtless be liable to the extent of her separate property invested.</p> <p>(4) The profits to which the wife’s right might be recognized by reason of her connection with the business became the common property of herself and husband, was entirely under the control of the husband, and could be disposed of by him only.</p> <p>(5) The husband enjoyed an interest in the profits of the business as profits, and he was a partner in the firm, as to third parties, if not as to other members of the firm. (Par. on Part., 70, 71 and authorities in note “/.”) He could not enjoy all the advantages of a partnership without incurring its liabilities.</p> <p>(6) Had the wife made no contract of partnership or been known in respect to the partnership affairs, and yet he had been in a position to demand an interest in the profits of the character stated, he would have been a partner as to third parties.</p> <p>(7) Had the husband signed articles of partnership void as to his copartners, but had regularly reaped his portion of the partnership gains, he would have been responsible for the firm debt, and was so in this case.</p>