Burton v. Ross

• Decision Date: 24 June 1926
• Docket Number: (No. 385.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 286 S.W. 1111
• Parties: BURTON v. ROSS.
• Court: Texas Court of Appeals

286 S.W. 1111

BURTON v. ROSS.

(No. 385.)^*

Court of Civil Appeals of Texas. Waco.

June 24, 1926.

Rehearing Denied October 7, 1926.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Mrs. William M. Ross against W. G. Burton and another. Judgment for plaintiff, and named defendant appeals. Affirmed.

Slay, Simon & Smith and O. K. Shannon, all of Fort Worth, for appellant.

H. C. Wade, J. E. McGinness, and Joseph F. Greathouse, all of Fort Worth, for appellee.

BARCUS, J.

This suit was instituted by appellee, a feme sole, against the Burton-Sappington Syndicate, a joint-stock association, and W. G. Burton, as a trustee of and stockholder in said association, to recover $1,000, the amount which appellee paid to W. G. Burton for stock in said association. Appellee claimed that she was entitled to a judgment against the association as such, and against W. G. Burton individually, by virtue of an agreement which was given to her at the time of and in connection with her purchase of said stock, which agreement is dated January 18, 1921, addressed to appellee, and reads as follows:

"We have sold you two units in the Burton-Sappington Syndicate for $1000, and herewith guarantee you against loss in this investment. After you have received the sum of $1000 from the Syndicate, this guarantee is hereby released and shall be of no effect.

                    "[Signed] Burton-Sappington Syndicate
                                       "By W. G. Burton."
                

The record shows that the Burton-Sappington Syndicate was a joint-stock company, and, at the time of the trial of this cause, same had been liquidated and all of its assets used to pay the expenses of the receiver. None of the stockholders received anything for their stock. It was further shown that W. G. Burton was a stockholder in, and the managing officer of, said company on the 18th of January, 1921, when G. Y. Smith, a brother of appellee, acting as agent for and on behalf of appellee, entered into a contract with appellant, Burton, by and under the terms of which appellee agreed to and did purchase two shares of stock in said company for $500 each, on condition that the stock company would and did execute and deliver the agreement and contract above set forth. The testimony is uncontradicted that, in order to obtain the $1,000 for said stock, the appellant Burton agreed to and did execute and deliver said agreement, and the $1,000 was paid at the time and in consideration of said contract being executed and delivered. It seems from the record that, as a matter of fact, no stock certificate was ever issued to appellee.

The Burton-Sappington Syndicate was being operated as a stock company under a certain declaration of trust, which provided that the trustees —

"shall have no power to bind the shareholders or members personally, and in every written contract they shall enter into relating to the business of this company, its property, or any part thereof, reference shall be made to said declaration of trust, and persons, firms, or corporations so contracting with them shall look to the funds and property, legal and equitable, of the company under said contract for the payment of any debt, damage, judgment, or decree, or of any money that may become due and payable in any way by reason thereof, and neither the trustees nor the shareholders, present or future, shall be personally liable therefor, of for any debt incurred, or engagement or contract made by the board of trustees or any officer, agent, or servant acting under them on behalf of the company."

The cause was...