Hamm v. Drew

• Decision Date: 19 January 1892
• Citation: 18 S.W. 434
• Court: Texas Supreme Court
• Parties: HAMM v. DREW <I>et al.</I>

18 S.W. 434

HAMM v. DREW et al.

Supreme Court of Texas.

January 19, 1892.

Commissioners' decision. Section B. Appeal from district court, Dallas county.

Suit by Frank Hamm, as receiver of the J. Stone & Sons Live-Stock Company.

against James Drew and another. Plaintiff appeals from a judgment for defendants. Reversed.

George H. Plowman, for appellant. Bassett, Seay & Muse, for appellees.

GARRETT, P. J.

Suit was against Drew and Cockrell for the recovery of five stallions. Appellant sued as the receiver of the J. Stone & Sons Live-Stock Company. Appellee Drew, who had charge of the stallions for said company, sold them to the appellee Cockrell a short time before Hamm was appointed receiver. His authority to sell was denied. The petition, after setting out that Drew was the bailee of the stallions, to keep and manage the same for said company, and describing and alleging the value of the stallions, charged, in effect, that on the 21st day of May, 1886, Drew fraudulently converted said property to his own use with intent to defraud said company, and fraudulently, unlawfully, and pretendingly conveyed said property to Alex. Cockrell, to whom all of which was well known, and that said defendants have and do unlawfully detain said property, and have converted same to their own use, and refuse to deliver same to plaintiff; and prayed judgment for the recovery of said property, costs of suit, and general relief. Drew answered, and disclaimed any right, title, or interest in the property; denied that he had possession thereof at the commencement of the suit, and that he set up any claim thereto. He denied that he sold said property to his co-defendant, Cockrell, for the purpose of defrauding the J. Stone & Sons Live-Stock Company; and alleged that the sale was in the regular line of business as agent and manager for said company, and that he received a full compensation for the property. He denied all the allegations in the petition in regard to himself, and asked to be allowed to go hence, etc. He was discharged by the court on his disclaimer, with his costs. Defendant Cockrell denied generally all and singular the allegations in plaintiff's petition, and answered specially that before the commencement of the suit he purchased the property in controversy, paying a full and valuable compensation therefor, having purchased the same from the J. Stone & Sons Live-Stock Company; and that he was then, and for a long time before the bringing of the suit had been, the bona fide owner of said property. Trial was had before the court without a jury, and judgment was rendered in favor of Cockrell. Appellant has assigned as error the action of the court in dismissing Drew on his disclaimer, the admission of evidence, and the conclusions of fact and of law.

Several witnesses were permitted to testify as to transactions and dealings with Drew as the representative of the J. Stone & Sons Live-Stock Company during the year 1885 and prior thereto, tending to show that he was the general manager or agent of the company. J. Stone & Sons Live-Stock Company was incorporated under the general incorporation law of Texas in March, 1882, for the purpose of "carrying on a general business in the purchase, raising, and selling of live-stock of any and all kinds." The charter provided that the legal domicile of the company should be at Dallas, Tex., and that the business of the company should be transacted at Dallas and such other points where said company might own or carry on ranches, etc., and purchase and sell cattle and other live-stock. There was a board of five directors, and the bylaws provided for a president, vice-president, secretary, and treasurer. No general manager was provided for in the charter or by-laws, but Drew was a director, and had been elected general manager, and had acted as general manager of the company for a long time prior to the sale of the stallions by him to Cockrell. At the time of the sale, however, he had the stallions in Dallas and adjoining counties, at different places, for the special purpose of service to mares. The objections to the evidence of the witnesses as to the transactions and acts of Drew tending to show that he was the general manager of the company were generally that the pleading of the defendant Cockrell was not...