Brown v. Galveston Wharf Co.

• Court: Texas Supreme Court
• Writing for the Court: Brown
• Citation: Brown v. Galveston Wharf Co., 50 S.W. 126 (Tex. 1899)
• Decision Date: 13 March 1899
• Parties: BROWN v. GALVESTON WHARF CO. (BLUM, Intervener).

50 S.W. 126

BROWN v. GALVESTON WHARF CO. (BLUM, Intervener).

Supreme Court of Texas.

March 13, 1899.

Error to court of civil appeals of First supreme judicial district.

Action by R. A. Brown, executrix of the estate of J. M. Brown, deceased, against the Galveston Wharf Company, for a balance of salary as its president. Leon Blum, vice president and acting president, intervened. From a judgment of the district court for plaintiff for part of the amount claimed and for intervener for part, an appeal was taken to the court of civil appeals, which reversed the judgment, and rendered judgment for intervener for the full amount (48 S. W. 41), and plaintiff brings error. Reversed.

Spencer & Kincaid, for plaintiff in error. Scott, Levi & Smith, for defendant in error Blum. Terry & Ballinger, for defendant in error Galveston Wharf Co.

BROWN, J.

R. A. Brown, the executrix of J. M. Brown, deceased, brought this suit against the Galveston Wharf Company, to recover of it a balance of a salary claimed to be due by the wharf company to J. M. Brown, as president of the said company, from February 1, 1895, to December 25, 1895. The wharf company pleaded that, during the time for which the plaintiff sought to recover the salary of J. M. Brown, he was, on account of illness, incapacitated from performing his duties as president of the company, and was absent from the state for several months during the time; that the duties of president were discharged by Leon Blum who was vice president of the company, during the illness and absence of J. M. Brown. Leon Blum intervened in the suit, and claimed that the salary was due to him as acting president during the said time. The trial court gave judgment for the plaintiff, R. A. Brown, for the sum of $1,390.62, with 6 per cent. interest from date, and in favor of Leon Blum for $1,534.87, which judgment the court of civil appeals reversed, and rendered judgment in favor of Leon Blum against the wharf company for the whole amount.

The following conclusions of fact were found by the court of civil appeals:

"The charter and by-laws of the corporation created the offices of president and vice president, who were elected annually in January, upon the organization of the board of directors, who were elected annually by the stockholders in that month, and the salary of the president was fixed at $3,000 per annum. J. M. Brown had been president of the company since 1889. The duties of the president and the vice president were defined in by-laws Nos. 6 and 7, as follows:

"`By-law No. 6. It shall be the duty of the president to preside at all meetings of the board, and to see that its orders and resolutions are duly complied with and executed; to call special meetings of the board of directors whenever he shall think proper; and to perform such other duties as may be devolved upon him by the board of directors.

"`By-law No. 7. It shall be the duty of the vice president, in the absence of the president, to preside at the meetings of the board. In case of the absence, death, sickness, or other inability of the president, he shall exercise the powers and discharge the duties of that officer until he returns to duty, or other provision is made therefor by the board of directors.'

"On February 2, 1895, J. M. Brown, who had been re-elected president in the month of January next previous thereto, on account of ill health asked for a leave of absence, which was granted by the company, and on the next day he left for Paterson, N. J., for treatment for malignant cancer. He was absent from the state until October 25, 1895, when he returned home. He died December 25, 1895. It appears conclusively from the mass of the testimony adduced on the trial below that J. M. Brown did not discharge any of the duties of the office of president after February 2, 1895, but that these duties were discharged by the vice president of the company, the intervener, Leon Blum. The company paid the salary up to February 1, 1895, to J. M. Brown, but after that time did not pay it to any one. From the resolutions entered in the minutes of the board of directors, it appeared that an indefinite leave of absence was granted, but, from parol evidence heard over objection by the appellant, it was shown that the leave asked for and granted was in fact for six weeks. The leave was never revoked, and no action was ever taken by the company with respect to the continued absence and illness of its president.

"In response to the motion of the appellant, we find the following additional conclusions of fact: J. M. Brown was twice absent from the state during the time he was president of the wharf company, in previous years, for about two months at a time, and his salary as president was paid during the time of said absences. It appeared that the first absence was by leave of the directors. Leon Blum was vice president of the company from 1890 to 1895, except the year 1891, and was an active director therein. As stated in the conclusions before filed, J. M....