
    No. XXVII.
    McKinney & Williams v. T. C. Bradbury, Administrator.
    (See .)
    
      Appeal from Brazoria County.
    
    
      
      .—McKinney & Williams v. Bradbury, Administrator, p. 441.
      The allegata and probata must correspond, and any material variance between them is fatal. The evidence must be confined to the issues made by the pleadings. Mims v. Mitchell, 1 T., 443; McClelland v. Smith, 3 T., 210; Hall v. Jones, 3 T., 305; Guess v. Lubbock, 5 T., 535; Roseborough v. Gorman, 6 T., 313; Paul v. Perez, 7 T., 338; Horton v. Reynolds, 8 T., 284; Young v. Lewis, 9 T., 73; McGreal v. Wilson, 9 T., 426; Parker v. Leman, 10 T., 116; Smith v. Montes, 11 T., 24; Thompson v. Thompson, 12 T., 327; Gammage v. Alexander, 14 T., 414; Chrisman v. Miller, 15 T., 159; Rogers v. Bracken, 15 T., 564; Dickson v. League, 16 T., 400; Kottwitz v. Bagby, 16 T., 656; Brown v. Martin, 19 T., 343; Parker v. Beavers, 19 T., 406; Lemmon v. Hanley, 28 T., 219; Heilbroner v. Hancock, 33 T., 714; Adams v. Hicks, 41 T., 239; Shipman v. Fulcrod, 42 T., 248; Dean v. Lyons, 47 T., 18; Tarleton v. Dailey, 55 T., 92; Loving v. Dixon, 56 T., 75; Laredo v. Russell, 56 T., 398; Ballew v. Casey, 60 T., 573; Wallace v. Boyce, 62 T., 636; Stewart v. Gordon, 65 T., 344; Middlebrook v. Zapp, 73 T., 29; Cooper v. Laughlin, 75 T., 524; Shiner v. Abbey, 77 T., 1; Morris v. Keisling, 79 T., 141; Moore v. Kennedy, 81 T., 144; Tinsley v. Penniman, 83 T., 54; Cooper v. Conerty, 83 T., 133; Armstrong v. O’Brien, 83 T., 635; Hoffman v. Loan Assn., 85 T., 409; Telegraph Co. v. Smith, 88 T., 9; Robinson v. Moore, 1 T. C. A., 93; G. C. & S. P. Ry. Co. v. Viefio, 7 T. C. A., 347; Quithana v. Smelting Co., 14 T. C. A., 347; G. H. & S. A. Ry. Co. v. Scott, 18 T. C. A., 321; Burnett v. Edling, 19 T. C. A., 711; Masterson v. Bockel, 20 T. C. A., 416; Dutton v. Mason, 21 T. C. A., 389; F. W. & D. C. Ry. Co. v. Rogers, 21 T. C. A., 605; Standart v. Vivion, 22 T. C. A., 144; Cranfil v. Hayden, 22 T. C. A., 656; Jones v. Drug Co., 25 T. C. A., 234; Jones v. Brazile, 1 App. C., sec. 299; Rogers v. Harrison, 1 App. C., sec. 495; McArnis v. McIntyre, 1 App. C., sec. 514; Smith v. McGehee, 1 App. C., sec. 940; Winn v. Sloan, 1 App. C., sec. 1107; Walker v. Simkins, 2 App. C., sec. 70; T. & P. Ry. Co. v. Wheat, 2 App. C., sec. 166; T. & N. O. Ry. Co. v. Oates, 2 App. C., sec. 618; G. C. & S. P. Ry. Co. v. Witt, 2 App. C., sec. 774; M. P. Ry. Co. v. Teague, 2 App. C., sec. 780; Henry v. Fay, 2 App. C., sec. 834; Ross v. Hawley, 3 App. C., sec. 107; Land Co. v. Jones, 3 App., sec. 271; McDannell v. Horrell, 1 U. C., 524.
    
   HANSFOBD, Justice.

This action was commenced in the District Court of Brazoria by the appellees—“trading together as merchants and partners, under the firm and style of Cole & Cogley/” on an account stated, for the sum of $6414.75 against “McKinney and Williams, merchants and partners,” of the same county, “trading under the firm and style of McKinney & Williams.” The petition, which is in the usual form, with the account annexed, concludes with a prayer “for debt, interest, cost and damages.” The answer denies all and singular the allegations of the petitioners and prays judgment for costs; and for further answer alleges that the petitioners were indebted to them in the sum of $6506.39 by account exhibited, and “prays judgment for the same with interest and costs.” Upon the issue joined, a trial was had at the fall term of the District Court for Brazoria County, and judgment rendered against McKinney & Williams for $4217.87, from which they appealed. There was also a motion in the court below to set aside the verdict and for a new trial, on the following grounds: 1. That the jury misconceived the evidence. 2. There was a mistake in the rendition of the verdict. 3. The verdict was contrary to law and evidence. 4. The defendants were surprised by the testimony relative to the order, or paper, spoken of by one of the witnesses. This last ground was supported by affidavit. The motion after argument was overruled and a new trial refused.

The statement of facts—as agreed on by the parties and certified by the judge—recites, that the appellants admitted the account of the plaintiff, and the appellee admitted the account of the defendants, except $3500 charged by the defendants against the plaintiffs for charter of steamboat Laura. The witness Welsh stated that the boat of McKinney & Williams, the Laura, was chartered by Cogley, one of the firm of Cole & Cogley, to go from Quintana to the mouth of the Sabine river. That after making the charter, Cogley gave an order, or draft on paper, for the amount of the charter, leaving the amount indefinite, and instructing them to furnish the defendants from time to time with what they might want, and that such articles as were demanded by defendants were furnished by Cole & Co^lev. The witness was clerk for defendants, but did not know for what purpose the boat was chartered, or whether it was for the benefit of Cole & Cogley or not. There was no direct proof that the contract of charter was a partnership transaction. The court charged the jury that if they believed that the charter was a partnership transaction they would allow the offset.

The court very properly ruled that common report was inadmissible to be given in evidence in the issue joined, and with equal propriety rejected proof of the contents of a written instrument, without its loss, or its possession by the adversary, being first legally established.

The charge of the judge was evidently too general and too indefinite. It embraced a mixed question .of law and fact. In civil cases, the law is properly confided to the court and the facts to the jury. To the legal abilities and the discriminating judgment of the court has been wisely committed the more difficult task of expounding the law to the jury; and to the judgment of twelve honest men, however unlearned, that of finding the facts and applying the law, under the charge of the court, to the facts thus found. It is when each are confined within the limits of its respective sphere as established by the Constitution and laws, and in strict conformity also with the great landmarks of that science which has been justly called the perfection of “human reason,” and the maxims and rules of which constitute the most stupendous fabric of intellectual grandeur ever reared by the mind of man, that the boasted trial by jury can be properly appreciated. The court should have charged the jury what constituted, in law, a partnership, and then left the jury to find the facts and apply those facts to the law. Is it to be expected that the yeomanry of the country, who must always constitute our juries, can decide what acts of one member of a firm are binding in law upon that firm? This would indeed be requiring of twelve men, uneducated in the first principles of the law, to decide upon questions in one of thé most difficult branches of the most difficult science that has ever occupied the cogitations of the human understanding. And although we can not say, in the language of the defendants’ motion for a new trial, “that the jury misconstrued the evidence,” we will say, that having been improperly employed in the function that belonged alone to the court—that of deciding what act in law of one partner was binding upon all—they “misconceived” the law, as they must generally do whenever the task of expounding it is committed to such unskilful hands. It was error then in the court below to so charge the jury, and the result was a verdict contrary to law and evidence.

Now let it be admitted for the sake of argument that Cogley chartered the steamer Laura for his own individual use and on his own private account; it is an allegation that could only properly be made by the plaintiffs, and on them and not upon the defendants rested the onus probandi. By a well settled rule of practice, as old as the law itself, the party making an averment must show that the allegata and the probata must correspond. And even in that case it would not be sufficient, if the transaction was of a character fairly within the range of the commercial transactions of the firm, unless a knowledge of the fact is brought home to the defendants by proof, and that they extended to Cogley the credit upon his own individual capacity. And supposing too that it was a private transaction of this character (and it is a supposition at war with the whole tenor of admissions of the parties and the evidence in the cause), yet subsequent to that transaction and in liquidation of the debt which had accrued upon the charter of the Laura, we find the firm of Cole & Cogley furnishing the defendants, in the language of the witness Welsh, “what things they wanted from time to time;” thus recognizing by their acts, and ratifying by their compliance with the stipulations of Cogley, the debt which had accrued upon the contract of charter, as a debt due by the firm. It is true that the articles thus furnished the defendants from time to time are attempted to be placed to account of the defendants as a running account with reference to the charter party; yet we think the plaintiffs in this attempt have wholly failed.

But although we have admitted for the sake' of argument that Cogley chartered the boat for his own use and on his individual credit, we do not believe that he did. We can not believe it in the absence of all testimony. And the rule of law is, that “if the partnership is admitted, the act of each of the partners, in transactions relating to the partnership, is considered the act of all and binds all. The act of one of the partners, though on his private account and contrary to the private arrangement among themselves, will bind all parties, if made without knowledge in the other party of the arrangement and in a matter which, according to the usual course of dealing, has reference to the business transacted by the firm.” Kent’s Com., p. 41; Hope v. Cust, 1 East, 53; Swan v. Steele, 7 East, 210; Le Roy, Bayard & Co. v. Johnson, 2 Pet., 186.

The books abound with numerous and subtle distinctions on the subject of the extent of the power of one partner to bind the company, and we shall not attempt to do more than select the leading rules and give a general analysis of the case upon this point. If a bill or note be drawn by one partner in his own name only and upon the firm of which he is a partner, on partnership account, the act of drawing has been held to amount, in judge of law, to an acceptance of the bill by the drawer in behalf of the firm, and to bind the firm, as an accepted bill. And even if the paper was made in a case which in its nature was not a partnership transaction, yet it will bind the firm, if it was made in the name of the firm, and there be evidence that it was done under its express or implied sanction. Kent’s Com., p. 41; Vesey, p. 602.

It is no matter with what fraudulent views goods are purchased by one partner, or to what purposes he may apply them, it is binding on the firm if the seller be clear of the imputation of collusion. 3 Kent, p. 45. In the case of Doty v. Bates it was held, upon good authority too, that the partnership being admitted, the presumption of law is that a note made by one partner in the name of the firm, in the regular course of partnership dealings, is for the benefit of all the parties and binding on the firm until the contrary be shown. 11 Johns., 546. There is no question as to the rule that if a person take a partnership security from one of the partners, for what is known at the time to be a particular debt of the partner who gives such security, the partnership is not, holden. Livingston v. Hasting, 2 Cam. Rep., 246. But this is matter of defense and must be proved by the party who wishes to take advantage of it. 11 Johns., 547. But in the case under consideration we do not find, in the statement of facts, any evidence on the part of the appellees to establish this point. The charter party was proven; the time the boat was employed under that contract and the value of the services was fully established; and the rule made it incumbent upon the appellees, by way of defense to the appellants’ cross action of set-off, to establish that fact before the set-off could be barred. From all that has been said we think that it is clear, upon a fair and ample inspection of the transcript of the record of the trial of this cause in the court below, that the jury was misled by the vague and uncertain charge of the judge, and that the verdict was contrary to law and evidence. And if any doubt could be entertained of the sufficiency of the evidence to have justified the jury in allowing the offset for $3500 upon the contract of charter for the steamer Laura (and we could wish that the facts were more definite on that particular point), yet no doubt can be entertained that it was illegal for the jury to have allowed interest. We speak not now of the excess of interest, which was remitted by the plaintiffs’ counsel, of $849.01— the mistake of the jury in the rendition of their verdict; but we speak of the illegality of finding interest at all ; because it is certain that we may search in vain for the law in force in this Republic that does in any manner authorize any such finding. 8 La., 11 Id., 520.

Upon a review, then, of all the facts and the law arising in this cause, we are of the opinion that it was error in the court below to refuse a new trial; and it is therefore considered by the court here that the judgment of the court below be reversed, and that this cause be remanded and a venire de novo be awarded, and a new trial had, and that the appellants recover of the appellee their costs in this court expended.

Reversed and remanded.  