Billingslea Grain Co. v. Howell

• Decision Date: 13 February 1918
• Docket Number: (No. 1246.)
• Citation: Billingslea Grain Co. v. Howell, 205 S.W. 671 (Tex. App. 1918)
• Parties: BILLINGSLEA GRAIN CO. v. HOWELL et al.
• Court: Texas Court of Appeals

Page 671

205 S.W. 671

BILLINGSLEA GRAIN CO. v. HOWELL et al.

(No. 1246.)

Court of Civil Appeals of Texas. Amarillo.

February 13, 1918.

Rehearing Denied March 20, 1918.

Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.

Action by the Billingslea Grain Company against John Howell and others. From judgment for defendants, plaintiff appeals. Affirmed.

R. H. Templeton, of Wellington, for appellant. R. H. Cocke, Jr., of Wellington, Counts & Counts, of Hollis, Okl., and A. M. Mood and H. G. Hendricks, both of Amarillo, for appellees.

HALL, J.

Appellant Grain Company, a private corporation organized under the laws of Oklahoma, through W. S. Wisdom, as its agent, was engaged in buying grain and cotton seed at Dodsonville, Tex., during the summer and fall of 1916, for shipment. About the 10th of October of that year Wisdom was forced to leave and appellee, John Howell, accepted the agency for appellant Grain Company at Dodsonville, and represented said company in the purchase of cotton seed and grain until about November 2d, when he, according to his statement, ceased to buy for appellant Grain Company and entered into an agreement with interveners, Hendricks & Scruggs, a firm of Hollis, Okl., whereby they should furnish the funds for his use in making purchases, and that the profits and losses should be shared equally between said firm and Howell. It appears, however, that Billingslea Grain Company was not notified of this arrangement, and of the fact that Howell had ceased to act as their agent, until November 6th, whereupon it filed this suit in Collingsworth county, Tex., and had a writ of sequestration issued and levied upon the grain and cotton seed then in Howell's hands at Dodsonville.

Howell filed an original answer, consisting of a general denial and of a special answer, alleging that he was the agent of Hendricks & Scruggs, a partnership, and that the property seized by the writ was not the property of appellants, nor of the said Howell, but was in truth and in fact the property of said Hendricks & Scruggs; that it was paid for out of the funds of said Hendricks & Scruggs, under an agreement between defendant and said Hendricks & Scruggs that defendant should be paid a commission on all grain and cotton seed so purchased. He prayed that Hendricks & Scruggs be made parties defendant, and alleged that at the instance and request of Hendricks & Scruggs he had replevied the property levied upon.

Hendricks & Scruggs filed an original answer, adopting the answer of John Howell, and praying for judgment in their favor. On the same day Hendricks & Scruggs filed a plea in abatement, alleging that appellant Grain Company was a foreign corporation; that it had not complied with the laws of the state of Texas, and obtained a permit to do business in the state, and was therefore not entitled to maintain the suit. This plea was tried, together with the other issues, and the cause submitted to a jury upon special issues, many of them immaterial and not necessary to be considered in disposing of this appeal.

The substance of the material issues found by the jury is: That Howell, on the 6th day of November, 1916, informed appellant that he would not let them have the grain; that appellant offered to pay Howell the price paid for the corn, maize, and cotton seed, and his commission; that all grain and cotton seed purchased prior to November 2, 1916, was bought for appellant company, but that such purchases were not intended by Howell to be made for appellant company between November 2d and November 6th; that Howell accepted employment of appellant and agreed to act as his agent for the purchase of grain and cotton seed after W. S. Wisdom ceased to act, about October 10, 1916, but did not give appellant notice that he would not represent them as agent until November 6th; that appellant did not agree to release Howell from his contract of agency. In reply to a number of questions the jury found that appellant was a foreign corporation, that it was transacting business in Texas without a permit, and that only part of the grain purchased and sold by said company was on interstate shipments. The judgment is evidently based upon the findings of the jury upon this issue, and decrees that the suit be dismissed.

The proposition is urged by the second assignment of error that the court should not have dismissed the action, since it appears that, although plaintiff was a foreign corporation, and doing...