On behalf of the defendant in error, counsel cited many authorities, which we have examined, but find none that we think it necessary to comment upon except Pfeuffer v. Maltby, 54 Tex. 454, 38 Am. Rep. 631, De Leon v. Trevino, 49 Tex. 89, 30 Am. Rep. 101, and Brooks v. Martin, 2 Wall. 70. The first case mentioned involved the right of a partner to recover against his copartner for profits accruing in what was alleged to be an illegal partnership. The defendant alleged in substance that the partnership was formed for the purpose of furnishing tinware to the confederate states government in lieu of military services required of the partners by that government, and that the tinware not so used had been sold for confederate money, which had been invested by the defendant partner in cotton, shipped to Mexico, and sold for specie. Plaintiff demurred to this answer, which demurrer was overruled, and, upon trial, judgment was entered against the plaintiff. The case was referred to the commission of appeals; the opinion was written by Judge A. S. Walker and approved by the supreme court. Judge Walker states the question thus: "Whether the contract of partnership at the time it was formed and entered upon by the parties was illegal and void as against public policy is not necessarily the controlling question; but the true inquiry is whether a party to that contract is liable or not, in an action against him, brought by his former partner to recover from him his share of the proceeds of the partnership." The judge then proceeded to state what was decided in the case of De Leon v. Trevino, 49 Tex. 89, 30 Am. Rep. 101, and to quote largely from that case, principally what Judge Moore had himself quoted from the case of Brooks v. Martin, 2 Wall. 70; but 224 does not announce in that part of the opinion what application he made of the quotations from De Leon v. Trevino, 49 Tex. 89, 30 Am. Rep. 101, to the facts of the case before the court. He then proceeded to discuss a different question from that stated in the first part of the opinion, after which he concludes the opinion thus: "We rest our conclusion in the case before us, however, upon the question first discussed. It is not necessary to decide beyond the point which is there involved." We understand from the opinion that the judge intended to decide that, notwithstanding the contract of partnership might be illegal, the plaintiff could recover of the defendant under the facts of that case. He does not notice that the answer of the defendant alleged that the confederate money received in the course of the business had been invested in cotton and it sold for specie. There

can be no doubt that where parties have jointly, in the pursuit of an illegal purpose, acquired money and have invested that money in property which is in the possession of one of the joint owners, such possessor cannot resist the claim of the other on the ground of the illegality of the business in which the money was first acquired; it was not necessary for plaintiff to prove the partnership because the cotton was bought for the firm, not in the course of the unlawful business. That case was rightly disposed of, and the opinion, when applied to the facts, is not objectionable in the propositions that it lays down, but it wholly fails to sustain the plaintiff's contention in this case.

Brooks v. Martin, 2 Wall. 70, involved the right of a partner to recover from his copartners under the following state of facts: Martin, Brooks, and Field entered into a copartnership contract whereby Martin agreed to furnish the money and the other two agreed to transact the business of the partnership which was then formed for the purpose of buying the claims of soldiers for lands before warrants were issued. The purchase of such claims from soldiers was prohibited by an act of Congress, and the supreme court of the United States held the partnership to be illegal. Brooks and Field bought up a large number of claims from the soldiers as they passed through New Orleans on their return from Mexico to their homes in the United States, and Martin furnished the money to pay for them, amounting to about fifty thousand dollars. It was then agreed that Brooks should go to Washington City and secure the warrants, which he did, and that Field should go to the northwest and look for suitable locations. The claims bought from the soldiers were converted into warrants issued by the government and regularly transferred to the firm, and by that firm had been sold and converted into money or located upon land and the title procured. Some of the land had been sold for cash, and some had been sold upon time with mortgages to secure purchase money. Martin failed in business, and, knowing nothing of the condition of the partnership business in the lands, met Brooks, who represented to him that the business was in a very bad condition, and purchased Martin's interest for about three thousand dollars. Martin sued to set aside his conveyance of his interest in the assets of the firm and to recover what was properly due to him, to which suit Brooks pleaded the illegality of the partnership by which the 225 purchase of the original claims of the soldiers was made. The supreme court of the United States, speaking by Justice Miller, said: "When

the bill in the present case was filed, all the claims of the soldiers thus illegally purchased by the partnership with money advanced by the complainant had been converted into land warrants, and all the warrants had been sold or located. The original defect in the purchase had, in many cases, been cured by the assignment of the warrant by the soldier after its issue. A large portion of the lands so located had also been held, and the money paid for some of it and notes and mortgages given for the remainder. There were then in the hands of defendants lands, money, notes, and mortgages, the results of the partnership business, the original capital for which plaintiff had advanced. It is to have an account of these funds and a division of these proceeds that the bill is filed. Does it lie in the mouth of the partner who has by fraudulent means obtained possession and control of all these funds to refuse to do equity to his other partners because of the wrong originally done or intended to the soldier? It is difficult to perceive how the statute enacted for the benefit of the soldier is to be rendered any more effective by leaving all this in the hands of Brooks, instead of requiring him to execute justice as between himself and his partners, or what rule of public morals will be weakened by compelling him to do so? The title to the land is not rendered void by the statute. It interposes no obstacle to the collection of the notes and mortgages. The transactions which were illegal have become accomplished facts and cannot be affected by any action of the court in this case." The conclusion of the court in the above-cited case is not expressed in definite terms, but, taking into consideration the facts stated as the premises from which to draw the conclusion, it could rest upon no other ground than that the funds derived from the transactions, which were illegal, had been realized and invested in other property, for which one of the partners could maintain an action against his copartners without resorting to the terms of the illegal partnership. Any other view of the case would place it in direct conflict with the decision made by the same court in Bartle v. Nutt, 4 Pet. 185. We do not think that Martin v. Brooks, 2 Wall. 70, sustains the contention of the defendant in error in this case.

In the case of De Leon v. Trevino, 49 Tex. 88, 30 Am. Rep. 101, the plaintiff sued to recover of the defendant upon notes. executed by the latter, to which the defense was interposed that the notes sued upon were given in settlement of the transactions of the partnership, which was formed for an illegal purpose.

Judge Moore, for the court, delivered an opinion in which the case of Martin v. Brooks, 2 Wall. 70, was carefully reviewed, and announced the conclusion that although the claim for which the note was given could not have been enforced if the partnership was illegal, yet, when the parties made a settlement of the illegal transactions among themselves and executed notes, the illegal character of the transaction did not attach to the notes and the defense set up could not prevail.

226 The answer of the defendant Wiggins, as amended by the trial amendment, alleged facts which, if true, would constitute a good defense to the plaintiff's action for an accounting of the affairs of the partnership between the plaintiff and the defendant; the district court erred in sustaining the demurrer to the answer, and the court of civil appeals erred in affirming that judgment. It is therefore ordered that the judgments of the district court and of the court of civil appeals be reversed and this case be remanded for further trial.

Reversed and remanded.

PARTNERSHIP-ILLEGALITY-ACCOUNTING.—While a partnership cannot be formed for an illegal purpose or one contrary to public policy: Jackson v. Brick Assn., 53 Ohio St. 303, 53 Am. St. Rep. 638; yet under certain circumstances it has been held, even in Texas, that when an illegal partnership enterprise has been completed, one partner cannot refuse to account to the other for the profits on the ground of the illegality of the partnership objects: Pfeuffer v. Maltby, 54 Tex. 454. 38 Am. Rep. 631; Crescent Ins. Co. v. Bear, 23 Fla. 50, 11 Am. St. Rep. 331.

CONTRACTS-ILLEGAL.-Courts of justice will not enforce the execution of an illegal contract, nor aid in the division of the profits of an illegal transaction between associates: Goodrich v. Tenney, 144 III. 422. 36 Am. St. Rep. 459; Gist v. Western Union Tel. Co., 45 S. O. 344, 55 Am. St. Rep. 763.

BRANOH V. INTERNATIONAL & GREAT NORTHERN RAILWAY COMPANY.

[92 TEXAS, 288.]

MASTER AND SERVANT-ACTS BEYOND SCOPE OF EMPLOYMENT.—If a railroad company intrusts the care of its handcar to its section foreman, it does not thereby become liable for an injury to a person at a public crossing, caused by collision with such handcar through the negligence of such foreman while operating the car upon his private business, not in the line of the operation of the railroad, nor in the performance of a duty to the company, and in violation of its orders.

F. J. Maier, for the appellant.

S. R. Fisher, for the appellee.

200 DENMAN, A. J. The court of civil appeals have certi fied to this court statement and questions as follows:

"This is an action by the appellant, John Branch, against the railway company to recover damages on account of injuries sustained by his wife in a collision with a handcar, operated upon appellant's road at a public crossing in the town of New Braunfels, Comal county, Texas.

"It is averred that the railway company intrusted the use and possession of the handcar to a foreman who was careless and untrustworthy, which fact was known to the defendant, and that it was a part of the duty of the foreman to carefully keep control and possession of said handcar, and that he negligently permitted the same to go upon the track in the night-time, and that he carelessly and negligently, in the operation of said handcar, caused it to collide with the plaintiff's buggy in which he and his wife were crossing the track at a public crossing.

"The facts in the record show that the handcar in question was intrusted to the possession, care, and use of one John Maloney, who used 201 the handcar for the benefit of the company. He at the time was the foreman of a telegraph repair gang for the defendant company.

"At the time of the accident, which occurred at night at a public street crossing of the railway in the town of New Braunfels, Maloney was propelling and operating the handcar on the railway track under circumstances from which a jury might infer negligence upon his part in running down the buggy in which the plaintiff and his wife were crossing the track; and under circumstances under which a jury might also infer that the plaintiff and his wife were not guilty of contributory negligence.

"The weight of the evidence tends to show that at the time of the accident, when Maloney was so using the handcar, he was doing so contrary to the instruction of the railway company, and for his own private use and benefit, not at the time being engaged in the performance of any duty imposed upon him by the company.

"There are also facts in the record which have a tendency to show that Maloney was a negligent and untrustworthy servant, and that the railway company had knowledge of this fact, or could have obtained knowledge by the exercise of reasonable diligence, and retained Maloney in its employ.