Allen v. Tyson-Jones Buggy Co.

• Decision Date: 15 April 1897
• Citation: 40 S.W. 393
• Court: Texas Supreme Court
• Parties: ALLEN et al. v. TYSON-JONES BUGGY CO.<SMALL><SUP>1</SUP></SMALL>

40 S.W. 393

ALLEN et al. v. TYSON-JONES BUGGY CO.¹

Supreme Court of Texas.

April 15, 1897.

Certified questions from court of civil appeals of Fourth supreme judicial district.

Suit by the Tyson-Jones Buggy Company against R. J. Allen and others for conversion. From a judgment in favor of plaintiff, defendants appeal. The question of plaintiff's right to sue was certified by the court of civil appeals. Decision in favor of plaintiff.

C. L. Jester and R. S. Neblett, for appellants. W. W. Ballew, for appellee.

BROWN, J.

The court of civil appeals for the Fourth supreme judicial district has certified to this court the following statement and question:

"This suit was brought by appellee, the Tyson-Jones Buggy Company, against appellants, Kemsler Bros. and R. J. Allen, to recover $300 actual and $100 vindictive damages for the alleged wrongful conversion by appellants of a phaeton and buggy belonging to the appellee. It was alleged by appellee (plaintiff below), in its petition, that it was a corporation organized under the laws of the state of North Carolina, in which state, at Carthage, was its principal office; that on the 6th day of November, 1893, it owned a certain stock of buggies and phaetons in Corsicana, Tex., then and there in the possession of Messrs. Southworth & Keesee, commission merchants, under a contract with appellee to handle them on commission; and that, on the day and year aforesaid, a phaeton and buggy of said stock were unlawfully seized and converted to their own use by appellants, with full knowledge of the fact that they were the property of the appellee. Exceptions were interposed by appellants to the petition, to the effect that it appeared therefrom that appellee is a foreign corporation, and that it was not alleged that it had filed its articles of incorporation, and obtained permission to do business in Texas. The exceptions were overruled. The uncontroverted facts show that the phaeton and buggy were the property of appellee, and while in the possession of its agents, Southworth & Keesee, for sale on commissions, they were seized, at the instance of Kemsler Bros., by R. J. Allen, as constable, under a distress warrant issued in favor of Kemsler Bros. against Southworth & Keesee, and were afterwards sold by said constable at public auction. Before they were sold, the attorney representing Kemsler Bros. was notified of the fact that they were the property of appellee. There was no evidence introduced by either party upon the question of whether appellee had filed its articles of incorporation with the secretary of state, and obtained permission to do business in Texas. The appellants asked the court to instruct the jury, as there was no such evidence, to find a verdict in their favor, which was refused.

"Question. Is it necessary for a foreign corporation doing business in...