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(248 S.W.)

trade-name of "S. A. Hackworth," recovery SOUTH DAKOTA-TEXAS OIL CO. V. by the latter alone was unauthorized; HACKWORTH et al. (No. 8253.)

(2) The action being by a broker for a com

mission for procuring a purchaser for real (Court of Civil Appeals of Texas. Galveston. estate, no recovery was justified because the Nov. 23, 1922. Rehearing Denied March 8, 1923.)

plaintiff failed to furnish a purchaser who

was either ready, willing, and able to buy, or 1. Parties Own 97(2)-Joinder of mere nominal wbo entered into a contract of purchase or partner not necessary party to suit for bro. exchange under which specific performance kerage.

could be enforced ; Where an agreement to pay commission was (3) The purchaser furnished by the plainmade between plaintiff under his individual tiff having refused to consummate the exname, and M., acting president of defendant change on the claim that his principal's title company, in an action for commissions by plain- was not valid, and the plaintiff having both tiff and his nominal partner, in which M. was a failed to procure a written contract of sale party and the judgment disposed of all parties to the action, plaintiff's associate, being no

exchange susceptible of enforcement more than a nominal partner, was not a neces- through specific performance and to show his sary party, and, in granting judgment to plain- principal's title was in fact defective, no case tiff only, defendant was not prejudiced by his was made out. joinder as party plaintiff.

These contentions will be disposed of in the 2. Brokers 86(5)- Evidence held to show order presented. broker procured purchaser for oil lands.

[1] 1. It is quite true that the suit was In action for commissions for procuring an filed in the names of S. A. and W. W. Hackexchange of oil lands, evidence held to show worth as plaintiffs, alleging “that they are that plaintiff procured a purchaser who, not- at present and have been for many years enwithstanding a contract between the parties to gaged in the real estate business, that they the exchange may not have been enforceable constitute a partnership and have been ng through specific performance, was ready, able, business under the trade name of 'S. A. and willing to go on with the deal as stipulated, Hackworth,'” and that the recovery was by and failure to consummate it was due to de- S. A. Hackworth alone; but under the facts fect in defendant's title.

appearing, we do not think the plaintiff in 3. Brokers mol(1)-Broker's commissions

error was in any wise prejudiced by the renot defeated by claim of failure to procure sult. The agreement to pay the commission enforceable contract.

had been made between S. A. Hackworth unWhere an agreement of exchange of prop- der his individual name and Mr. K. Master. erties procured by purchaser was not enforceable through specific performance due to a son, who, it seems, although Hackworth did defect in title to the lands of defendant, plain- not so understand, was acting at the time for tiff's claim for commissions, after procuring a and as president of the oil company. Both customer ready, able, and willing to buy on the of these, as well as the oil company and W. terms proposed, cannot be defeated by claim w. Hackworth, were parties to the suit, and of his failure to procure a contract of sale or the judgment disposes of all of them; it beexchange susceptible of specific performance.

ing expressly decreed that S. A. Hackworth Error from District Court, Harris Coun- recover against the oil company, that H. ty; Chas. E. Ashe, Judge,

Masterson go hence with his costs, and that

W. W. Hackworth recover nothing. The latAction by S. A. Hackworth and another ter was the son of S. A. Hackworth, and the against the South Dakota-Texas Oil Com- evidence discloses that there was no general pany. Judgment for plaintiff named, and de- copartnership relation existing between them, fendant brings error. Affirmed.

as indicated in the quoted recitation from Elliott Cage, of Houston, for plaintiff in their pleadings, but that the son, who was

resident at Kansas City, Mo., and aided his Grover Rees and Bryan, Dyess & Colgin, father at Dickinson, Tex., in arranging this all of Houston, for defendant in error. transaction, was only interested in half the

commissions on the deals he helped to make. GRAVES, J. The South Dakota-Texas Oil In these circumstances, we think W. W. Company, a corporation, appeals in this cause Hackworth was not more than a nominal from a judgment for $1,078, interest and partner with his father, that he was therecosts, rendered by the court below sitting fore not a necessary party to the suit, and without a jury in favor of S. A. Hackworth that while he had an equitable right under against it, attacking the award here on three the arrangement between himself and his grounds:

father to one-half the commission in this in(1) The suit having been brought in the stance by reason of having helped in earning names of S. A. and W. W. Hackworth, under it, the father remained the holder of the allegation that they constituted a partner- legal title to the whole of it and so could ship in the real estate business under the recover it all in his individual name. Inman For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Writ of error dismissed for want of jurisdiction April 18, 1:23.

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v. Brown (Tex. Civ. App.) 147 S. W. 652, 655 ; , Company still tendered performance on its Cleveland & Cameron v. Heidenheimer, 92 part and expressed its willingness to at once Tex, 108, 112, 46 S. W. 30; Keesey v. Old, go on with the transaction, if two of the prin3 Tex. Civ. App. 1, 21 S. W. 693.

cipal stockholders of plaintiff in error would A further consideration is that W. w. join with it in a warranty of the title to the Hackworth has not appealed from the ad- land to the Munger Company; but this was judication that he take nothing against either refused, and the exchange of the properties of the defendants he so sued, which fact pre-was never effected. cludes him.

While plaintiff in 'error ably insists here [2] 2. The evidence, we think, furnishes that this suit in Waco was not necessary, an answer to this second proposition, and jus- did not materially affect its title to the land, tified the trial court in concluding that Hack. which it contends was good anyway, and that worth had procured a purchaser who, not- defendant in error neither showed its title withstanding the written contract between to be defective nor that the contemplated exthe two parties to the agreement of exchange change of properties failed on that account, of properties may not have been enforceable we think these matters were foreclosed by through specific performance, was ready, the adverse judgment rendered, in that the able, and willing to go on with the deal as court was justified in finding from the evi. stipulated, and that the failure to consum- dence that it agreed that its title was defecmate it was due to a defect in the oil com- tive and that the suit against Viesca's heirs pany's title. If that was the situation, under was necessary to clear it up. Mr. Lewis R. well-settled authority, the real estate agent Bryan, who examined the title to the 8,625 had earned and was entitled to his commis- acres for the land company, so testified, and sion. Hamburger v. Thomas (Tex. Civ. App.) | plaintiff in error nowhere controverted the 118 S. W. 774; Id., 103 Tex. 280, 126 S. W. statement. That being true, and the ques561; Henderson v. Gilbert (Tex, Civ. App.) tion raised as to the validity of its title be. 171 S. W. 304.

ing admittedly the sole impediment to the The purchaser furnished by Hackworth consummation of the exchange defendant in was the Munger Land Company, a corpora- error had procured to be agreed upon, under tion, of Kansas City, Mo., and it, acting by representations to him by plaintiff in error's Willis R. Munger, its president, entered into president that it really owned the land, it fola written contract with plaintiff in error oil lows, under the authorities last cited. that company, acting by H. Masterson, its presi- he had done all that was required of him. dent, whereby the Vanderbilt Apartments in [3] 3. What has just been said fully disKansas City, represented by the land com- poses of the third point presented also. pany to belong to it, were, subject only to a The assignments of error have been carespecific lien indebtedness of $37,500 then out- fully considered, but in our opinion none of standing against them, to be exchanged, free them point out reversible error; the judg. from any other incumbrance against either ment has accordingly been in all things af

firmed. property, and under general warranty deeds

Affirmed, from the respective owners, for 8,625 acres of land in the Viesca Eleven League Grant in Leon county. Tex., represented by the oil company to be then owned by it; a survey ALLISON, County Judge, et al. v. ELLIS et al. of the land and abstracts from both parties,

(No. 6962.) showing good and legal title in the respective parties hereto to the property conveyed (Court of Civil Appeals of Texas. San Anby them, being provided for. Abstracts to tonio. Feb. 21, 1923. Rehearing Denied the Munger property were duly furnished to

March 14, 1923.) and examined by H. Masterson, and no ob- Highways mw 130/2, New, vol. 12A Key-No. Se. jections were raised to its title. Pending the

ries-County held necessary party in action carrying out of these agreements and before

to restrain performance of county commisexpiration of the time within which they sioners' contract for road construction work. were to be disposed of, the oil company, In a suit to restrain the, performance and through its president, filed a suit in the fed-execution of a contract between the county eral court at Waco, Tex., seeking a judgment commissioners' court and a construction comfor the title to the 8,625 acres it had so con- pany for road construction work, the county, tracted to sell and exchange to the Munger being materially affected by the suit, was a nec. Company against the unknown heirs of J. essary party, under Rev. St. art. 1835, provid

ing that all suits brought by or against any of M. Viesca.

the counties, or incorporated cities, towns, or Notwithstanding this proceeding, which ap- villages shall be by or against it in its corpopears to have been taken pursuant to a con rate name. ference and understanding as to its being necessary between the respective attorneys Appeal from District Court, Edwards for the contracting corporations, the Munger | County; Jos. Jones, Judge,

(248 S.W.) Suit by C. W. Ellis and others against civ. App.) 170 S. W. 838; Veltmann v. Slatar A, P. Allison, County Judge, and others, (Tex. Civ. App.) 200 S. W. 539; Martin v. for an injunction. From an order overruling Alexander Tex. Civ. App.) 218 S. W. 653; a motion to dissolve a temporary injunc- Basham v. Holcombe (Tex. Civ. App.) 240 S. tion, and overruling a plea of nonjoinder, W. 691. In the last-cited case it was said: defendants appeal. Reversed, and temporary

“For an additional reason the trial court's reinjunction dissolved.

fusal of the injunction must be sustained. AlL. Old, of Uvalde, and J. E. Friestman, of though the suit was an effort to restrain the Rock Springs, for appellants.

officials of the city from making a contract on Thurmond & Belcher, of Del Rio, for ap- to, a designated peson, neither the city itself

its behalf with, and from paying out its money pellees.

nor the person affeeted were made parties, as

has been before stated. Under well-settled au. FLY, C. J. This is an appeal from the in- thority, both were necessary parties to a proterlocutory order of the district judge of the ceeding so directly and vitally affecting their Sixty-Third judicial district of Texas, over

ruling a motion to dissolve a temporary in-
junction theretofore granted by him, and

A large number of decisions are cited overruling a plea of nonjoinder of Edwards which sustain the text. It is a general rule county as a defendant in a suit wherein c. in equity that all persons materially interestW. Ellis, Minter Parker, J. S. Brown, and ed, either legally or beneficially, in the subIra Wheat were plaintiffs, and A. P. Allison, ject-matter of a suit, are necessary parties, county judge, J. W. Babb, H. Ř. Perkins, o. either as plaintiffs or defendants. Says Mr. L. McNealy, and W. J. Greer, county com- Pomeroy in his Equity Jurisprudence, $ 114: missioners, S. A. Hough, county clerk, Min. “The governing motive of equity in the adnie Clark, county treasurer, W. C. Simpson, ministration of its remedial system is to grant county engineer, all officers of Edwards coun- full relief, and to adjust in one suit the rights ty, Tibbetts Construction Company, a part- and duties of all the parties, which really grow Dership, Louis M. Ashburn, and George F. | out of or are connected with the subject-matter Ashburn were defendants. The object of of that suit. Its fundamental principle conthe suit was to restrain the defendants, ap- cerning parties is that all persons in whose fapellants herein, from the performance and however partial, and also all persons who are

vor or against whom there might be a recovery, execution of a certain contract made by and so interested, although indirectly, in the subbetween the commissioners' court of Ed-ject-matter and the relief granted, that their wards county and the construction company rights or duties might be affected by the deand the Ashburns for the construction of cree, although no substantial recovery can be 4,000 lineal feet of macadamized public road obtained either for or against them, shall be in commissioners' precinct No. i, Edwards made parties to the suit. • The primary county, evidently being the extension of a object is that all persons sufficiently interested road already constructed on what is known may be before the court, so that the relief may as the Rock-Springs-Barksdale road. It was liabilities properly apportioned, and the inci.

be properly adjusted among those entitled, the alleged that the contract was made for over dental or consequential claims or interests of $2,000 on or about December 1, 1922, and all may be fixed, and all may be bound in rewas made without first submitting the same spect thereto by the single decree." to competitive bids, and without public notice of the time and place of the letting of

It cannot with any degree of sound reasuch contract, as required by the general soning be contended that the county will not laws of 1917.

be affected by the decree rendered in this Edwards county in its capacity as a munic- case, whether it be to sustain the acts of ipal corporation was not made a party to its officers and agents or to annul them. the suit, but merely its officers and agents Neither can a want of necessary parties be were joined with the contractors as parties disregarded on an assumption that the aldefendant. Through article 1835, Revised legations of the petition show an invalid conStatutes of Texas, it is provided:

tract by which the county is not bound. The "All suits brought by or against any of the demands for the necessary parties in a court counties or incorporated cities, towns or vil- of equity cannot be met in any such way. lages shall be by or against it in its corporate The county has the right to be in at the death name."

of a contract to which its officers have bound

it. Its interests cannot be determined in a If this suit is against Edwards county or suit to which it is not a party. Again no materially affects it' in any manner, then it decree should be rendered which would not is a necessary party to the suit under the be res adjudicata of every matter in the case, plain mandate of the statute cited. So the and, as said in Vance v. Miller, herein cited: statute has been constructed in a number of "Without a decree against the corporation cases. Renshaw v. Arnett (Tex. Civ. App.) there would be nothing to prevent any future 158 S. W. 1197; Texas Co. v. Daugherty (Tex. officer from proceeding to collect the taxes Civ. App.) 160 S. W. 129; Vance v. Miller (Tex. complained of under the present records, which

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must be held so defective as not to authorize, ceivers for the Texas & Pacific Railway Comthe tax collector to collect the taxes assessed." pany. From a judgment for plaintiffs, deThe only question presented to this

fendants appeal. Reformed and aförmed. court is whether the county of Edwards is a

Conner & McRae, of Eastland, and Robnecessary party to this suit, and we hold ert Thompson, of Dallas (R. S. Shapard, of that it is. In view of a reversal we would Dallas, of counsel), for appellants. call the attention of the trial court to the full

Patterson & Sherry, of Cisco, for appellees. discussion of article 2268a, Vernon's Tex. Civ. Stats., 1918 Supp., found in Hunter v. Whiteaker (Tex. Civ. App.) 230 S. W. 1096, which

BUCK, J. This is a suit by B. W. Mcwas given by this court and approved by the Carty, Guy McCarty, Lloyd McCarty, and Supreme Court. It will be noted from the George Harris, partners doing business unlaw and its discussion in that case that there der the style and firm name of Cisco Furare exceptions that may have a bearing on niture Company, hereinafter called plaintiff, this case when developed.

against J. L Lancaster and O. L Wallace, The judgment is reversed and the tempo receivers for the Texas & Pacific Railway rary injunction dissolved.

Company, a corporation.

Plaintiff alleged that on March 13, 1920, there were shipped to it at Cisco from Fort Worth two breakfast chairs and one straight

chair and two rugs, and that the defendants LANCASTER et al. v. MCCARTY et al.* duly accepted the same to be safely and se(No. 10093.)

curely transported over said railroad to (Court of Civil Appeals of Texas. Fort Worth. the city of Cisco with ordinary care and rea. Jan, 13, 1913. Rehearing Denied

sonable diligence, and to be safely and seFeb. 17, 1923.)

curely delivered to plaintiff at Cisco, and

that the reasonable charges for said shipment 1. Carriers 23-Liability of carrier for goods irrespective of stipulations in bill of thereof to plaintiff'; that defendants were

were paid to defendants on the delivery lading held not changed by amendment to negligent in the transportation of said propstatute.

Act Cong. Aug. 9, 1916 (U. S. Comp. St. & erty, and that by reason of said negligence 8604a), amending Cummins Act March 4, 1915, said rugs were permitted to come in contact g 1, regulating interstate commerce, did not with an acid or other fluid, by reason of change the law that a common carrier is liable which a large hole was eaten out of the to the holder of a bill of lading for the actual center of each of said rugs, thereby renderloss or damage to goods shipped, and cannot | ing the same worthless and valueless; that limit such liability by stipulations in the bill said rugs were reasonably worth $95 each; of lading.

that the two breakfast chairs mentioned 2. Commerce 7-Intrastate shipments gov. were damaged and injured to the extent of

erned by state rate and regulations, where $2.50 each; that the straight chair men. not discriminatory against interstate com- tioned was damaged and injured in the sum merce, and limitations of liability in bill of of $3, the total damages being $198, for which lading invalid.

plaintiff sued, and asked that an attorney's The Interstate Commerce Commission is fee of $20 be allowed in addition. not authorized to establish rates governing in

The defendants answered by a general detrastate shipments, where the state rates do nial, and specially pleaded that the goods not discriminate against nor affect interstate commerce, such intrastate rates being gop

were shipped from the Ellison Furniture & erned by state law and the rules and regula. Carpet Company under a written contract tions of the State Railroad Commission, and and agreement duly executed by and between hence, under Rev. St. art. 705, a stipulation the said Ellison Furniture & Carpet Comin the bill of lading on an intrastate shipment, pany and the defendants; that said shipment limiting liability of the carrier, is invalid, and was received and transported subject to recovery of actual value is allowed.

the regulations and rules of the railroads 3. Carriers am 132—The presumption is that of Texas and of the Interstate Commerce

goods lost or damaged in intrastate commerce Commission, and of the classification of was through carrier's negligence.

freight rates as fixed by the Western ClassiIn the absence of proof to the contrary, it tication of such freight rates as adopted, will be presumed that the loss of and injury to duly posted, and filed with the Interstate goods in intrastate commerce was caused by Commerce Commission and in force at the the negligence of the carrier.

time of the transportation of the goods;

that the shipper of said goods placed a valuaAppeal from Eastland County Court; J. tion on the rugs of $75 per 100 pounds, and H. Jones, Judge.

that under the rule and under the tariff rates Action by B. W. McCarty and others as fixed and adopted by the Interstate Comagainst J. L. Lancaster and another, re merce Commission the plaintiff received the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests ana Indexes


(248 S.W.) benefit of a less freight rate than it would | Interstate Commerce Commission No. 14 have received had a greater valuation been and items 1, 2, and 3 were in force and effect, placed thereon; and that under the law it having been duly adopted and filed with the was limited to its right of recovery to the Interstate Commerce Commission. The exvalue so fixed.

tracts from the rates adopted by the InterThe cause was tried before the court with state Commerce Commission and contained out the intervention of a jury, and a judg- in the statement of facts are as follows: ment was rendered for the plaintiff for $198 damages and $20 attorney's fee, to- by the shipper, or agreed upon in writing as

"1. N. 0. I. B. N. Value declared in writing gether with interest thereon from date of the released value of the property, in accordjudgment, less a credit of $10. The credit ance with the following: of $10 was awarded, evidently on the ground "2. If not exceeding $75.00 per 100 pounds, that the rugs, even in their damaged condi- in burlapped bales or rolls, or in boxes or tion, were worth said sum. The defendants wrapped bundles, see notes 1 and 2. bave appealed.

"3. If exceeding $75.00 per 100 lbs., and not The cause comes before this court on an exceeding $125.00 per 100 lbs., in burlapped agreed statement of facts. It is agreed that bales or rolls, or in boxes or wrapped bundles,

see notes 1 and 2. on March 12, 1920, the Ellison Furniture

"Note 1. The value declared in writing by & Carpet Company shipped the goods, for the the shipper, or agreed upon in writing as the damage to which suit was filed, together with released value of the property, as the case may other furniture, and that a bill of lading was be, must be entered on shipping order and bill issued by the defendants, and that upon said of lading as follows: bill of lading was stamped the following

“ 'I hereby declare the value of the rugs notation: “Valuation on rugs less than $75.00 herein described as per 100 lbs.' per 100 pounds." There is no other stipula

(Shipper's signature.) tion or condition contained in the bill of lading affecting the issues herein involved, nor any reference to any rates adopted by the

" "The value of the rugs herein described is Interstate Commerce Commission. Section hereby agreed upon as $

per 100 pounds.' 12 of the conditions on the back of the bill

[Shipper's signature.) of lading is as follows:

"2. Rugs of value not exceeding $125.00 per "This bill of lading is given subject to cor

100 lbs., shipped in bundles must be completely rection as to rate, weight and classification, so wrapped in three or more thicknesses of Sulas to conform to the rates, rules and regula- phite Kraft Paper weighing not less than 60 tions prescribed by the Railroad Commission lbs., per ream (480 sheets, 24x36 inches), seof Texas."

curely tied and knotted at each crossing with

polished unoiled hemp twine or rope having a Section 13 provides:

breaking strength not less than the weight of

the package and in no case less than 00 lbs. "No agent of this railway has authority to (Issued under authority of Interstate Commake an oral contract for the shipment of merce Commission's Released Rate Order No. freight and this bill of lading contains all of 85 of November 13, 1919.)" the provisions of the contract of shipment between the parties hereto, and no qualifications, alterations, erasures in or additions to the

That the rates so established by the Inconditions thereof, shall be made except under terstate Commerce Commission, based on the written directions of the general freight Texas lines, mileage circular, were 70 cents agent, or the auditor for receivers, attached per 100 pounds on rugs not exceeding in hereto."

value $75, and where such value exceeded

$75, but did not exceed $125, the rate was No such directions are attached to the $1.05 per 100 pounds, and that such rates and bill of lading. It is admitted the goods were classifications were in full force and efdelivered to the defendants in good con- fect on March 12, 1920. That the rugs for dition, and that the shipper placed a valua- damage to which this suit was brought fell tion on the rugs mentioned in said contract within such classification, and that the freight of less than $75 per 100 pounds. That upon rate paid at the time of the delivery of the arrival and delivery of said goods at Cisco, shipment was based upon such valuation. two of said rugs were practically ruined with That said tariff and Western Classification, acid, and were of the reasonable market val- as hereinbefore set out were put into effect ue of $5 each. That each of said rugs weigh in pursuance of an order of the Interstate ed 40 pounds, or in the aggregate 80 pounds. Commerce Commission entered in what is That the two breakfast chairs were damaged, known as the Shreveport Rate Case, and broken, and injured, and the cost of repair- were made by such order applicable to intraing the same was $5, which was a reason- state as well as interstate shipments. That

That $3 was a reasonable the plaintiff herein duly filed, within the time charge for the repair of the other chair. provided by law, a claim for damages in That at the time of making said shipment, this case, and the defendants failed and dewhich was a shipment of less than a carload, clined to pay the same within the time proWestern Classification No. 56, R. C. Fyfe's | vided by law, and $20 is a reasonable claim

248 S.W.-52

able charge.

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