On Motion For Rehearing
On its motion for rehearing, Texaco argues that this court erred in holding that there were no pleadings to support a judgment for it on the theory that Charles R. Wolfe was liable as a partner for the debts of Wolfe Construction Company. Texaco also asserts that we erred in holding that Charles R. Wolfe was not liable to it on the original credit card application.
Texaco’s first amended original petition reads in pertinent part as follows:
“. . complaining of Charles R. Wolfe and wife Elizabeth Wolfe, individually and doing business as Wolfe Construction Company; and Nickles S. Wolfe, also known as Nick Wolfe, and wife, Patricia Wolfe, Construction Company, jointly and severally . . . ”
The legal effect of this portion of Texaco’s pleading is to allege that it is seeking recovery against Charles R. Wolfe and wife, and also against Nickles S. Wolfe and wife, all in their individual capacities, jointly and severally. The fact that they were doing *742business as Wolfe Construction Company does not make the Wolfe Construction Company a party to the suit. Since a default judgment was entered against Nickles S. Wolfe and his wife, we are here concerned only with Charles R. Wolfe and wife, Elizabeth. If, as it now contends, Texaco was entitled to a judgment against Charles R. Wolfe, individually, because he was a partner in Wolfe Construction Company, it was encumbent upon Texaco to allege and prove a cause of action against Wolfe Construction Company. The only further proof then necessary would have been to show that Charles R. Wolfe was a partner of Wolfe Construction Company. This is basic partnership law. The record before us reveals that Wolfe Construction Company was indeed a partnership composed of Nickles S. Wolfe and Charles R. Wolfe, but Texaco chose not to plead such.
Texaco argues that “Since partnership liability was raised, and the case was also tried on that theory, Plaintiff could be granted a judgment against the partnership .” We have not been shown, nor can we find any legal authority for granting a judgment in favor of a party or entity not named in the suit as a plaintiff or a defendant. As we have previously pointed out, Texaco’s pleadings clearly show that it sought judgment only against Charles R. Wolfe, individually. Rule 67, T.R.C.P. has no application to this fact situation.
There is a further indication that Texaco was not relying on a partnership theory for its recovery. It would have been necessary to require the trial court to instruct the jury on the law of partnership in order to fix Charles R. Wolfe’s derivative liability. No such instruction was requested nor given.
The jury heard evidence from which it could reasonably infer that Charles R. Wolfe and wife were not individually liable for the credit card purchases made the basis of the suit. The jury’s finding that Charles R. Wolfe and wife owed nothing to Texaco finds support in the evidence.
The motion for rehearing is overruled.