Ward, Briggs & Co. v. Newell, Gatewood & Co.

Citations

• 37 Tex. 261

Syllabus

<p>1. In a suit by partners on a partnership demand, defendants filed a plea of payment and set-off, based upon an account against 0., who was one of the plaintiffs; which account they attempted tojaove by a witness who testified that “ C. had a book account with the defendants, the amount “ of which was not known to witness, but that he, witness, was a clerk “ of the defendants, and had sold to C. some of the articles charged in the “ account.” Held, that this testimony fails to prove the correctness of the account, or the identity or value of any article therein charged, and only proves that the account was an individual liability of C., and therefore no set-off against the plaintiffs’ partnership demand; wherefore it was not error for the court below, on motion of the plaintiffs, to withdraw the account from the jury.</p> <p>2. In the absence of any undertaking or other act by creditors for whose benefit an assignment is made to a trustee, they cannot be held responsible for the acts or defalcation of the trustee; but, on failure of the trustee to perform his duty and discharge their demands, they are entitled to recourse upon their debtors, notwithstanding the assignment.</p>