Eddingston v. Acom

• Decision Date: 15 February 1924
• Docket Number: (No. 1048.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 259 S.W. 948
• Parties: EDDINGSTON et al. v. ACOM.
• Court: Texas Court of Appeals

259 S.W. 948

EDDINGSTON et al. v. ACOM.

(No. 1048.)^*

Court of Civil Appeals of Texas. Beaumont.

February 15, 1924.

On Rehearing, March 29, 1924.

Appeal from District Court, Jefferson County.

Action by O. H. Acom against A. T. Eddingston and others. Judgment for plaintiff, and defendants appeal. Affirmed.

E. A. McDowell, Jno. M. Conley, and P. D. Renfro, all of Beaumont, for appellants.

Smith, Crawford & Sonfield, B. F. Pye, and J. M. Cormack, all of Beaumont, for appellee.

WALKER, J.

On the 1st day of January, A. D. 1919, appellant on the one part and G. O. Daniels and L. L. Eden on the other entered into the following contract:

"United States of America, The State of Texas, County of Jefferson.

"Articles of agreement between A. T. Eddingston, G. O. Daniels, and L. L. Eden, all of Jefferson county, Tex., witnesseth:

"That, whereas, the said G. O. Daniels and L. L. Eden are desirous of raising and selling, and are desirous of entering the art and trade of such business, but have not the means and money so to do; and

"Whereas, the said A. T. Eddingston, in consideration of the hereafter presents, has agreed to give the aforesaid parties financial aid with which to carry on said business;

"Now, therefore, it is mutually agreed by and between the parties hereto that the said G. O. Daniels and L. L. Eden are to engage in the art, trade, and business of raising and selling rice, on a tract of land lying in Chambers county, Tex., on the Anuhuac Canal, containing five hundred acres more or less, which said tract they have leased from C. C. Rush of said county, the rental of which being one-half (1/2) of the rice, gross, raised on said land per year, the said C. C. Rush to furnish water, seed, and two-thirds of the fertilizer.

"That the said A. T. Eddingston is to advance this day the sum of one thousand ($1,000.00) dollars, or thereabouts, the same being one-half of the price of the purchase price of two Fordson tractors, the price of which being twenty-two hundred dollars, and to advance, to the parties aforesaid, in addition to the above sum or sums as may be needed for the purchase of other implements needed on said farm for the rice business, which is estimated with the above will amount to twenty seven hundred dollars, and such other and further advances as may be needed from time to time, such as money for wages for labor, groceries, feed for mules, etc., but in no event are such advances to exceed the sum of four thousand ($4,000.00) dollars, nor are the above parties to make demand on said A. T. Eddingston in excess of said amount, nor will be liable to them in excess of said amount.

"That it is hereby agreed by and between the parties hereto that the said A. T. Eddingston is to be secured in the amount of his advances to the said G. O. Daniels and L. L. Eden, and it is agreed by the parties hereto that he has a lien upon all the tools, implements, machinery, fixtures, belongings to the said parties and the rice raised by them.

"That it is further agreed by and between the parties hereto that the said G. O. Daniels and L. L. Eden, shall as soon as the rice is harvested, threshed, sacked and sold, reimburse and repay the said A. T. Eddingston the sum or sums of money or moneys advanced by him to the said G. O. Daniels and L. L. Eden for the operation of the herein business and as herein set forth, it being agreed by the parties hereto that the said money is to be repaid to the said A. T. Eddingston as soon as can be done and during the first year of this contract.

"It being further agreed by and between the parties hereto that after the payment to the said A. T. Eddingston of what is due him for advances, at the time of the selling the first crop and the first year of this contract, and after the payment of the land rent due the landlord, C. C. Rush, which is one-half of the rice crop, gross, per year, the balance in three (3) parts among the parties hereto, one-third being allowed to the said A. T. Eddingston as a consideration for his loan and financial assistance herein to the said parties G. O. Daniels and L. L. Eden, it being agreed and understood that the said A. T. Eddingston is to receive said one-third share during the life of this contract, of the rice crops and other crops raised during the years 1919 and 1920, in recognition and acknowledgment of his financial assistance herein, and it is expressly understood and agreed by and between the parties hereto, that under no circumstances is the said A. T. Eddingston to make any advances or give any financial assistance to said other parties herein after the first year, but that the business for 1920 must be operated solely at the expense of the said G. O. Daniels and L. L. Eden.

"It is further agreed by and between the parties hereto that the said G. O. Daniels and L. L. Eden are to devote all their time, energy, experience, skill and good will to said business of growing rice on said farm, and the said G. O. Daniels is to receive the sum of seventy-five ($75) dollars per month, salary for his services in the said business, and the said L. L. Eden, the sum of fifty ($50) dollars per month, salary, for his services, and that they shall not and will not at any time hereafter, during the period above named, exercise or follow the said business, or any other, to their private emolument or advantage, but shall and will from time to time, and at all times during said period, use their utmost endeavors, to the best of their skill and ability, carry on and pursue and operate said farm and business as their skill and experience in the rice business will permit, and that if one or the other of the said parties should at any time become discouraged and for any other cause leave said business, he thereby forfeits his right to any of the profits herein, and shall have no demand upon the others whatsoever.

"It being agreed by and between the parties hereto that the said G. O. Daniels and L. L. Eden, shall keep during the said life of this contract and operation of the aforesaid business perfect, just and correct book accounts, wherein either of the parties hereto may have access thereto, showing all expenditures by the said parties and the moneys received by them, in fact every business transaction of the rice business, and shall render or cause to be rendered each to the other a statement of the condition of the business at the end of each year's rice business, or sooner, if required by either of the parties hereto.

"It is further mutually agreed by and between the parties hereto, and to all whom these presents may come, that the aforesaid agreement is not a partnership agreement, nor is the said A. T. Eddingston recognized as a partner herein, but this agreement is drawn for the purpose of protecting the said A. T. Eddingston in his loan and financial assistance to the said G. O. Daniels and L. L. Eden, and of securing him in his loan to the others, and of agreeing to a mortgage lien therefor, and of agreeing of the aforesaid G. O. Daniels and L. L. Eden of showing their appreciation and acknowledgment of said loan to them, by allowing the said A. T. Eddingston a recompense therefor of one-third as aforesaid, and until the said loan is paid to the said A. T. Eddingston, we, the undersigned, G. O. Daniels and L. L. Eden, as a security to the said A. T. Eddingston, hereby grant, sell, and convey to the said A. T. Eddingston all of the personal property by us owned and to be owned in said rice business, to wit, all Fordson tractors, implements, tools, machinery, etc., and the rice crop and all other crops of every kind and nature to be by us raised during the years 1919 and 1920 on the aforesaid five hundred acre tract of land leased from C. C. Rush.

"To have and to hold the same until said amount or amounts advanced are paid, giving him such power and authority in the premises to enforce his loan as the law directs.

"Witness our hands in triplicate, at Pt. Arthur, Texas, this 1st day of January, A. D. 1919.

                                   A. T. Eddingston
                                  "G. O. Daniels
                                  "L. L. Eden."
                

The parties to this contract undertook to perform its conditions in raising the rice crops. Daniels and Eden became heavily involved, and because of the fall in the value of rice were made wholly insolvent. In raising the crops they bought supplies from appellee, evidenced by an open account in the sum of $2,416.20, and by a promissory note executed to appellee by Daniels and Eden in the sum of $2,905.87. After Daniels and Eden had failed to pay the debts against them incurred in raising the rice crops, they sold and assigned to appellant certain tools, machinery, and grain, etc., executing to him a bill of sale therefor. On the trial of this case appellee demanded of appellant the production of this bill of sale, but he refused to produce the same, though admitting that it was in the possession of his attorney. After appellant had refused to produce the written bill of sale, G. O. Daniels testified as follows as to the contents of same:

"We gave Mr. Eddingston a bill of sale to the rice and implements and to the mules and everything, and he was to assume whatever debts that we owed; we gave him a list of what we owed, and I went to Batson, and went to work in the oil field, and didn't hear any more about it.

"At that time there was also an arrangement with Mr. Eddingston whereby he assumed liability for those debts; he said that he was going to have to pay them, or was going to pay them.

"I will state the terms of that bill of sale as near as I can — the best I can remember about it is — it just described the property and where it was located; that bill of sale included the rice; there was not any property retained by Mr. Eden and myself that we did not put into that bill of sale.

"That equipment cost us right around in the neighborhood of $13,000."

In the execution of the original contract, as set out above, nothing was done by...