(248 S.W.) SOUTH DAKOTA-TEXAS OIL CO. v. (Court of Civil Appeals of Texas. Galveston. I. Parties 97 (2)-Joinder of mere nominal Where an agreement to pay commission was made between plaintiff under his individual name, and M., acting president of defendant company, in an action for commissions by plaintiff and his nominal partner, in which M. was a party and the judgment disposed of all parties to the action, plaintiff's associate, being no more than a nominal partner, was not a necessary party, and, in granting judgment to plaintiff only, defendant was not prejudiced by his joinder as party plaintiff. 2. Brokers 86(5)—Evidence held to show broker procured purchaser for oil lands. In action for commissions for procuring an exchange of oil lands, evidence held to show that plaintiff procured a purchaser who, notwithstanding a contract between the parties to the exchange may not have been enforceable through specific performance, was ready, able, and willing to go on with the deal as stipulated, and failure to consummate it was due to defect in defendant's title. 3. Brokers 61(1)—Broker's commissions not defeated by claim of failure to procure enforceable contract. Where an agreement of exchange of properties procured by purchaser was not enforceable through specific performance due to a defect in title to the lands of defendant, plaintiff's claim for commissions, after procuring a customer ready, able, and willing to buy on the terms proposed, cannot be defeated by claim of his failure to procure a contract of sale or exchange susceptible of specific performance. trade-name of "S. A. Hackworth," recovery by the latter alone was unauthorized; (2) The action being by a broker for a commission for procuring a purchaser for real estate, no recovery was justified because the plaintiff failed to furnish a purchaser who was either ready, willing, and able to buy, or who entered into a contract of purchase or exchange under which specific performance could be enforced; (3) The purchaser furnished by the plaintiff having refused to consummate the exchange on the claim that his principal's title was not valid, and the plaintiff having both failed to procure a written contract of sale exchange susceptible of enforcement through specific performance and to show his principal's title was in fact defective, no case was made out. or These contentions will be disposed of in the order presented. [1] 1. It is quite true that the suit was filed in the names of S. A. and W. W. Hackworth as plaintiffs, alleging "that they are at present and have been for many years engaged in the real estate business, that they constitute a partnership and have been doing business under the trade-name of 'S. A. Hackworth,'" and that the recovery was by S. A. Hackworth alone; but under the facts appearing, we do not think the plaintiff in error was in any wise prejudiced by the result. The agreement to pay the commission had been made between S. A. Hackworth un der his individual name and Mr. H. Masterson, who, it seems, although Hackworth did not so understand, was acting at the time for and as president of the oil company. Both of these, as well as the oil company and W. W. Hackworth, were parties to the suit, and the judgment disposes of all of them; it being expressly decreed that S. A. Hack worth recover against the oil company, that H. 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 defendant brings error. Affirmed. Error from District Court, Harris County; Chas. E. Ashe, Judge. copartnership relation existing between them, as indicated in the quoted recitation from Elliott Cage, of Houston, for plaintiff in their pleadings, but that the son, who was error. Grover Rees and Bryan, Dyess & Colgin, all of Houston, for defendant in error. GRAVES, J. The South Dakota-Texas Oil Company, a corporation, appeals in this cause from a judgment for $1,078, interest and costs, rendered by the court below sitting without a jury in favor of S. A. Hackworth against it, attacking the award here on three grounds: (1) The suit having been brought in the names of S. A. and W. W. Hackworth, under allegation that they constituted a partnership in the real estate business under the resident at Kansas City, Mo., and aided his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes v. Brown (Tex. Civ. App.) 147 S. W. 652, 655; | Company still tendered performance on its Cleveland & Cameron v. Heidenheimer, 92 Tex. 108, 112, 46 S. W. 30; Keesey v. Old, 3 Tex. Civ. App. 1, 21 S. W. 693. A further consideration is that W. W. Hackworth has not appealed from the adjudication that he take nothing against either of the defendants he so sued, which fact precludes him. part and expressed its willingness to at once go on with the transaction, if two of the principal stockholders of plaintiff in error would join with it in a warranty of the title to the land to the Munger Company; but this was refused, and the exchange of the properties was never effected. 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 evistipulated, 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.) 171 S. W. 304. tion raised as to the validity of its title be. ing admittedly the sole impediment to the consummation of the exchange defendant in error had procured to be agreed upon, under representations to him by plaintiff in error's president that it really owned the land, it follows, under the authorities last cited. that he had done all that was required of him. [3] 3. What has just been said fully disposes of the third point presented also. The assignments of error have been carefully considered, but in our opinion none of them point out reversible error; the judgment has accordingly been in all things af firmed. Affirmed. The purchaser furnished by Hackworth was the Munger Land Company, a corporation. of Kansas City, Mo., and it, acting by Willis R. Munger, its president, entered into a written contract with plaintiff in error oil company, acting by H. Masterson, its president, whereby the Vanderbilt Apartments in Kansas City, represented by the land company to belong to it, were, subject only to a specific lien indebtedness of $37,500 then outstanding against them, to be exchanged, free from any other incumbrance against either property, and under general warranty deeds 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, showing good and legal title in the respective parties hereto to the property conveyed by them, being provided for. Abstracts to the Munger property were duly furnished to and examined by H. Masterson, and no ob-Highways jections were raised to its title. Pending the carrying out of these agreements and before expiration of the time within which they were to be disposed of, the oil company, through its president, filed a suit in the federal court at Waco, Tex., seeking a judgment for the title to the 8,625 acres it had so contracted to sell and exchange to the Munger Company against the unknown heirs of J. M. Viesca. (No. 6962.) (Court of Civil Appeals of Texas. San Antonio. Feb. 21, 1923. Rehearing Denied March 14, 1923.) 1302, New, vol. 12A Key-No. Series-County held necessary party in action to restrain performance of county commissioners' contract for road construction work. In a suit to restrain the, performance and execution of a contract between the county commissioners' court and a construction company for road construction work, the county, being materially affected by the suit, was a necessary party, under Rev. St. art. 1835, providing that all suits brought by or against any of the counties, or incorporated cities, towns, or villages shall be by or against it in its corpo rate name. Notwithstanding this proceeding, which appears to have been taken pursuant to a conference and understanding as to its being necessary between the respective attorneys for the contracting corporations, the Munger County; Jos. Jones, Judge. Appeal from District Court, Edwards For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (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 injune- 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. Al L. 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 its behalf with, and from paying out its money Thurmond & Belcher, of Del Rio, for ap- to, a designated peson, neither the city itself pellees. nor the person affected were made parties, as has been before stated. Under well-settled au A large number of decisions are cited which sustain the text. It is a general rule in equity that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, are necessary parties, either as plaintiffs or defendants. Says Mr. Pomeroy in his Equity Jurisprudence, § 114: 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 interests." Sixty-Third judicial district of Texas, overruling a motion to dissolve a temporary injunction theretofore granted by him, and overruling a plea of nonjoinder of Edwards county as a defendant in a suit wherein C. W. Ellis, Minter Parker, J. S. Brown, and Ira Wheat were plaintiffs, and A. P. Allison, county judge, J. W. Babb, H. R. Perkins, O. L. McNealy, and W. J. Greer, county commissioners, S. A. Hough, county clerk, Minnie Clark, county treasurer, W. C. Simpson, county engineer, all officers of Edwards county, Tibbetts Construction Company, a partnership, Louis M. Ashburn, and George F. Ashburn were defendants. The object of the suit was to restrain the defendants, appellants herein, from the performance and execution of a certain contract made by and between the commissioners' court of Edwards county and the construction company and the Ashburns for the construction of 4,000 lineal feet of macadamized public road in commissioners' precinct No. 1, Edwards county, evidently being the extension of a road already constructed on what is known as the Rock-Springs-Barksdale road. It was alleged that the contract was made for over $2,000 on or about December 1, 1922, and was made without first submitting the same to competitive bids, and without public notice of the time and place of the letting of such contract, as required by the general laws of 1917. "The governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit. Its fundamental principle concerning parties is that all persons in whose favor or against whom there might be a recovery, however partial, and also all persons who are so interested, although indirectly, in the subject-matter and the relief granted, that their rights or duties might be affected by the decree, although no substantial recovery can be obtained either for or against them, shall be made parties to the suit. The primary object is that all persons sufficiently interested may be before the court, so that the relief may be properly adjusted among those entitled, the liabilities properly apportioned, and the incidental or consequential claims or interests of all may be fixed, and all may be bound in respect thereto by the single decree." The It cannot with any degree of sound reasoning be contended that the county will not be affected by the decree rendered in this case, whether it be to sustain the acts of its officers and agents or to annul them. Neither can a want of necessary parties be disregarded on an assumption that the allegations of the petition show an invalid contract by which the county is not bound. demands for the necessary parties in a court of equity cannot be met in any such way. The county has the right to be in at the death of a contract to which its officers have bound it. Its interests cannot be determined in a suit to which it is not a party. Again no decree should be rendered which would not be res adjudicata of every matter in the case, and, as said in Vance v. Miller, herein cited: "Without a decree against the corporation there would be nothing to prevent any future officer from proceeding to collect the taxes complained of under the present records, which 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, defendants appeal. Reformed and affirmed. The only question presented to this court is whether the county of Edwards is a necessary party to this suit, and we hold that it is. In view of a reversal we would call the attention of the trial court to the full discussion of article 2268a, Vernon's Tex. Civ. Stats., 1918 Supp., found in Hunter v. Whiteaker (Tex. Civ. App.) 230 S. W. 1096, which was given by this court and approved by the Supreme Court. It will be noted from the law and its discussion in that case that there are exceptions that may have a bearing on this case when developed. The judgment is reversed and the temporary injunction dissolved. Conner & McRae, of Eastland, and Rob- BUCK, J. This is a suit by B. W. McCarty, Guy McCarty, Lloyd McCarty, and George Harris, partners doing business under the style and firm name of Cisco Furniture Company, hereinafter called plaintiff, against J. L. Lancaster and C. L. Wallace, receivers for the Texas & Pacific Railway 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.) (Court of Civil Appeals of Texas. Fort Worth. statute. curely transported over said railroad to the city of Cisco with ordinary care and reasonable diligence, and to be safely and securely delivered to plaintiff at Cisco, and that the reasonable charges for said shipment were paid to defendants on the delivery thereof to plaintiff; that defendants were negligent in the transportation of said prop 1. Carriers 23-Liability of carrier for goods irrespective of stipulations in bill of lading held not changed by amendment to Act Cong. Aug. 9, 1916 (U. S. Comp. St. §erty, and that by reason of said negligence 8604a), amending Cummins Act March 4, 1915, § 1, regulating interstate commerce, did not change the law that a common carrier is liable to the holder of a bill of lading for the actual loss or damage to goods shipped, and cannot limit such liability by stipulations in the bill of lading. 2. Commerce 7-Intrastate shipments governed by state rate and regulations, where not discriminatory against interstate commerce, and limitations of liability in bill of lading invalid. The Interstate Commerce Commission is not authorized to establish rates governing intrastate shipments, where the state rates do not discriminate against nor affect interstate commerce, such intrastate rates being governed by state law and the rules and regulations of the State Railroad Commission, and hence, under Rev. St. art. 70S, a stipulation in the bill of lading on an intrastate shipment, limiting liability of the carrier, is invalid, and recovery of actual value is allowed. said rugs were permitted to come in contact with an acid or other fluid, by reason of which a large hole was eaten out of the center of each of said rugs, thereby rendering the same worthless and valueless; that said rugs were reasonably worth $95 each; that the two breakfast chairs mentioned were damaged and injured to the extent of $2.50 each; that the straight chair mentioned was damaged and injured in the sum of $3, the total damages being $198, for which plaintiff sued, and asked that an attorney's fee of $20 be allowed in addition. The defendants answered by a general denial, and specially pleaded that the goods were shipped from the Ellison Furniture & Carpet Company under a written contract and agreement duly executed by and between the said Ellison Furniture & Carpet Company and the defendants; that said shipment was received and transported subject to the regulations and rules of the railroads of Texas and of the Interstate Commerce Commission, and of the classification of freight rates as fixed by the Western Classification of such freight rates as adopted, duly posted, and filed with the Interstate Commerce Commission and in force at the 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. 3. Carriers 132-The presumption is that goods lost or damaged in intrastate commerce was through carrier's negligence. In the absence of proof to the contrary, it will be presumed that the loss of and injury to goods in intrastate commerce was caused by the negligence of the carrier. Action by B. W. McCarty and others against J. L. Lancaster and another, re that under the rule and under the tariff rates For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and 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 Inter "1. N. O. I. B. N. Value declared in writing by the shipper, or agreed upon in writing as the released value of the property, in accordance with the following: The 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, together with interest thereon from date of judgment, less a credit of $10. The credit of $10 was awarded, evidently on the ground that the rugs, even in their damaged condition, were worth said sum. The defendants have appealed. The cause comes before this court on an agreed statement of facts. It is agreed that on March 12, 1920, the Ellison Furniture & Carpet Company shipped the goods, for the damage to which suit was filed, together with other furniture, and that a bill of lading was issued by the defendants, and that upon said bill of lading was stamped the following notation: "Valuation on rugs less than $75.00 per 100 pounds." There is no other stipulation or condition contained in the bill of lading affecting the issues herein involved, nor any reference to any rates adopted by the Interstate Commerce Commission. Section 12 of the conditions on the back of the bill of lading is as follows: "This bill of lading is given subject to correction as to rate, weight and classification, so as to conform to the rates, rules and regulations prescribed by the Railroad Commission of Texas." Section 13 provides: "No agent of this railway has authority to make an oral contract for the shipment of freight and this bill of lading contains all of the provisions of the contract of shipment between the parties hereto, and no qualifications, alterations, erasures in or additions to the conditions thereof, shall be made except under the written directions of the general freight agent, or the auditor for receivers, attached hereto." "2. If not exceeding $75.00 per 100 pounds, in burlapped bales or rolls, or in boxes or wrapped bundles, see notes 1 and 2. "3. If exceeding $75.00 per 100 lbs., and not exceeding $125.00 per 100 lbs., in burlapped bales or rolls, or in boxes or wrapped bundles, see notes 1 and 2. [Shipper's signature.] "2. Rugs of value not exceeding $125.00 per 100 lbs., shipped in bundles must be completely wrapped in three or more thicknesses of Sulphite Kraft Paper weighing not less than 60 lbs., per ream (480 sheets, 24x36 inches), securely tied and knotted at each crossing with polished unoiled hemp twine or rope having a breaking strength not less than the weight of the package and in no case less than 100 lbs. (Issued under authority of Interstate Commerce Commission's Released Rate Order No. 85 of November 13, 1919.)" That the rates so established by the Interstate Commerce Commission, based on Texas lines, mileage circular, were 70 cents per 100 pounds on rugs not exceeding in 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 able charge. 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 |