Tex. Land & Cattle Co. v. Iler
| Decision Date | 13 January 1885 |
| Docket Number | Case No. 1928. |
| Citation | 63 Tex. 48 |
| Court | Texas Supreme Court |
| Parties | THE TEXAS LAND AND CATTLE CO. v. CARROLL & ILER. |
APPEAL from Nueces. Tried below before the Hon. J. C. Russell.
This suit was instituted by Carroll & Iler, the appellees, on the following bill of exchange:
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¦“$1,805.06.¦CORPUS CHRISTI, TEXAS, June 8, 1883.¦
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The Texas Land and Cattle Company, Limited:
Pay to the order of Carroll & Iler, eighteen hundred and five 06-100 dollars in current funds. On account of building and repairs. Payment in full.
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¦Charge $1,805.06 to Ranche. ¦ ¦ ¦
+----------------------------------+-+----------------¦
¦To Underwood, Clark & Co., ¦)¦THOS. BEYNON, ¦
+----------------------------------+-+----------------¦
¦15 West Mo. Ave., Kansas City, Mo.¦)¦Superintendent.”¦
+----------------------------------+-+----------------¦
¦“No. 15086.” ¦ ¦ ¦
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Appellees failed to allege ownership or holding, either legal or equitable; but alleged non-payment and protest, and prayed judgment for amount of same, interest, protest fees and establishment and foreclosure of builders' and repairers' lien.
Appellant answered with general and special demurrers, sworn plea of non est factum, and sworn plea of failure of consideration, and prayed for appointment of an auditor to adjust the accounts between said appellees and appellant.
Appellees, with leave of court, filed a first supplemental petition, wherein they joined issue with appellant on its general demurrer and special exceptions, and they filed exceptions to appellant's pleas of non est factum and failure of consideration, averring that the latter plea “does not show with clearness and certainty wherein the consideration failed.” They again failed to allege either legal or equitable holding or ownership.
The court sustained so much of the demurrers of the appellant to the original petition of appellees as related to the establishment and foreclosure of a builder's and repairer's lien, but overruled appellant's general demurrer otherwise, and special exception as to non-joinder of parties.
The exception to the plea of failure of consideration was sustained. Appellees on the trial offered in evidence the alleged bill of exchange, which on the reverse was indorsed, Appellant objected to a pen erasure of this indorsement, after an announcement of ready for trial.
Judgment was rendered for appellees in the amount of the bill of exchange, interest and protest fees.
Welch & Givens, for appellant, cited, on non-joinder of parties: Denison v. League, 16 Tex., 409;Allison v. Schilling, 27 Tex., 454;Bennett v. Spillars, 7 Tex., 601; Story's Equity, § 159; Story on Agency, §§ 148, 150, 155, 159; Wharton on Agency, §§ 280, 290, 504.
On plea of failure of consideration, they cited: Arts. 272, 1265, R. S. Texas; Trevino v. Hein, 3 Tex. L. Rev., p. 82; Mercer v. Hall, 2 Tex., 285, 288;Clopton v. Pridgen, 8 Tex., 311;Brantley v. Thomas, 22 Tex., 275.
On insufficiency of petition: Anderson v. Shaw, 3 Tex. L. Rev., p. 171; Wheeler & Dabney v. Roberts, 3 Tex. L. Rev., p. 183; Colbertson v. Beeson, 30 Tex., 76;Gilder v. McIntyre, 29 Tex., 91;Hanks v. Enloe, 33 Tex., 627;Burton v. Anderson, 1 Tex., 97; Whitaker v. Record, 25 Tex. Sup., 382; Sayles' Pleading and Practice, and authorities cited, § 17.
McCampbell & Givens, for appellees, cited: R. S., art. 1037; Dist. Court Rules, 23, 24, 25, 26; Railroad Co. v. Montier, 61 Tex., 172; Hardin v. Abbey, 57 Tex., 582;Barnard v. Tarleton, 57 Tex., 402;Carter v. Roland, 53 Tex., 540;Flannagan v. Womack, 54 Tex., 45;Atchison v. Hutchison, 51 Tex., 232;Randall v. Carlisle, 59 Tex., 69;Robinson v. Brinson, 20 Tex., 438;Stillman v. Canales, 39 Tex., 406.
This action was brought by the appellees upon the following instrument of writing:
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¦“$1,805.06.¦CORPUS CHRISTI, TEXAS, June 8, 1883.¦
+------------------------------------------------+
The Texas Land and Cattle Company, Limited:
Pay to the order of Carroll & Iler, eighteen hundred and five and 06-100 dollars in current funds. On account of building and repairs. Payment in full.
+-----------------------------------------------------+
¦Charge $1,805.06 to Ranche. ¦ ¦ ¦
+----------------------------------+-+----------------¦
¦To Underwood, Clark & Co., ¦)¦THOS. BEYNON, ¦
+----------------------------------+-+----------------¦
¦15 West Mo. Ave., Kansas City, Mo.¦)¦Superintendent.”¦
+----------------------------------+-+----------------¦
¦“No. 15086.” ¦ ¦ ¦
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Appellees nowhere alleged ownership or holding, either legal or equitable, but alleged non-payment and protest, and prayed judgment for amount of same, interest and protest fees.
It clearly appears, from the petition and from the evidence, that the appellant is a foreign corporation owning ranches and stock situated in Nueces county, Texas, and that Thomas Beynon is the general manager and agent of the corporation; and by it empowered to draw such instruments as the one sued on for the purpose of meeting such debts and expenses as may be incurred in the management of the property of the corporation. This seems to have been the manner in which the corporation intended and provided he should receive funds or pay debts, arrangements having been made with Underwood, Clark & Co. to cash such paper, even the form of which was furnished to Beynon to enable him to accomplish this purpose.
The instrument sued on was executed to Carroll & Iler in settlement of a balance due them for labor performed by them on the property of the corporation, they having performed a great deal of labor for it, which was settled for in the same way at different times.
All these facts were known to the parties at the time the instrument was executed; no credit was given to Beynon, and as between the parties to this action, it was not necessary to make Beynon a party, for all parties knew that it was not the intention of Beynon to incur any personal obligation, and contracted with reference to that knowledge, and with reference to the known fact that this was the method adopted by the appellant for the settlement of its own debts.
The general rule is that an agent should execute a contract in the name of his principal, and in reference to negotiable instruments it is well settled that no one can be charged thereon unless his name appears as a party to the paper in some relation. Daniels on Neg. Inst., 303.
This rule, however, in reference to negotiable paper, arises from the nature of such paper and the uses for which it is intended.
Such paper is expected and intended, if it be necessary or convenientfor the holder to do so, to be transferred and to pass into the hands of various persons, and for the security of all who may deal with it, it is necessary that it should show upon its face the liability of every person who is bound for its payment; for...
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