Berkman v. Levy

• Decision Date: 27 April 1939
• Docket Number: No. 2079.,2079.
• Citation: 129 S.W.2d 397
• Parties: BERKMAN et al. v. LEVY.
• Court: Texas Court of Appeals

129 S.W.2d 397

BERKMAN et al. v. LEVY.

No. 2079.

Court of Civil Appeals of Texas. Waco.

April 27, 1939.

Rehearing Denied June 8, 1939.

Appeal from District Court, Fifty-Fourth District, McLennan County; D. W. Bartlett, Judge.

Suit by Lester L. Levy against Jake Berkman and another for specific performance of a contract to sell plaintiff one-third of defendants' shares of the capital stock of a corporation to be organized. Judgment for plaintiff, and defendants appeal.

Affirmed.

W. L. Eason, of Waco, for appellants.

Naman, Howell & Boswell, of Waco, for appellee.

GEORGE, Justice.

This is a suit for specific performance of a contract instituted in the 54th Judicial District Court of McLennan county, Texas, by Lester L. Levy against Jake Berkman and Harry A. Wood. Trial was before the court and jury and on answers of the jury to special issues, judgment was rendered in favor of Levy. Hence this appeal by Berkman and Wood.

Appellants in their 3rd, 4th, 5th, 6th, 7th and 8th propositions assert that the trial court was without jurisdiction in this cause because appellee's petition does not allege a cause of action within the jurisdiction of the district court. Levy alleged that he was well acquainted with ice machinery and the construction of an ice factory and that Berkman and Wood proposed to him that if he would assist them in laying out the plans for an ice factory in the city of Waco and in the assembling of the equipment therefor and give them the benefit of his advice and counsel in respect to these matters, they would sell and transfer to him one-third of their shares of the capital stock in the corporation to be organized in consideration of the payment by him to them of the par value of such shares, or $666.66; that the corporation had been organized with a capital stock of $3,000; that Berkman and Wood had received or were entitled to receive from the corporation shares of the capital stock aggregating the par value of $2,000; that he had tendered to Berkman and Wood $666.66 but that they had, in breach of their contract, on or about May 1, 1935, refused to accept said money and deliver to him said capital stock; that the stock was closely held and was not commonly bought and sold on the market and had no market value; that its value was not fixed and could not be readily ascertained; that the stock could not be obtained otherwise; that the stock will have a future value far beyond its present value, but that such prospective value cannot be easily ascertained and determined, and that therefore plaintiff had no adequate remedy at law and was entitled to specific performance; and in his prayer tendered into court the sum of $666.66 and prayed that upon hearing thereof he have judgment for specific performance of said contract, and that Berkman and Wood be required by the decree of the court to accept said sum and to issue or cause to be issued to him a certificate or certificates of stock in said corporation evidencing the ownership in him of capital stock in said corporation of the par value of $666.66, etc.

It is provided by Article 5, sec. 8 of the Constitution, Vernon's Ann.St., that the "District Court shall have original jurisdiction * * * of all suits, complaints or pleas whatever, * * * when the matter in controversy shall be valued at or amount to five hundred dollars exclusive of interest * * * and shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution, and such other jurisdiction, original and appellate, as may be provided by law." Jurisdiction is the power to hear and determine the matter in controversy according to established rules of law, and carry the sentence or judgment of the court into execution. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, par. 9. The test of jurisdiction is whether the court had power to enter upon the inquiry. Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876; Yount v. Fagin, Tex.Civ. App., 244 S.W. 1036. The pleadings determine the thing or the amount in controversy. And the question whether a particular suit is, as to the amount in controversy, within the jurisdiction of the court in which it is filed, is determined by the averments in the petition insofar as they state facts in relation to the thing in controversy; and this is true, regardless of the truth of the allegations, unless it is made to appear by pleading and proof that the allegations as to jurisdiction were fraudulently made. Clonts v. Johnson, 116 Tex. 489, 294 S.W. 844; Dwyer v. Bassett & Bassett, 63 Tex. 274; Booth v. Texas Employers' Ins. Association, Tex. Com.App., 123 S.W.2d 322, par. 9; Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145.

The corporation had been in existence about two years at the time of filing suit. The stockholders had paid in cash par for the capital stock. Its stock was not on the market and none was being offered for sale at any price. Levy had agreed and was willing at the time of filing suit and at the time of trial to pay for the stock its par value. He alleged in his petition tender into court of the sum of $666.66, and further alleged that amount to be the par value of the stock sought to be recovered by him. This constituted an allegation that the minimum amount in controversy was $666.66 as effectively as if he had said the value of the stock was $666.66. The petition calls upon the court to decide, after hearing and consideration, that Berkman and Wood are obligated under their contract with Levy to accept the sum of $666.66, and in consideration therefor issue or cause to be issued to him a certificate or certificates of stock...