Ferguson v. Beaumont Land & Building Co.

• Court: Court of Appeals of Texas
• Writing for the Court: Key
• Citation: 154 S.W. 303
• Decision Date: 30 January 1913
• Parties: FERGUSON v. BEAUMONT LAND & BUILDING CO. et al.

Page 303

154 S.W. 303 FERGUSON
v.
BEAUMONT LAND & BUILDING CO. et al. Court of Civil Appeals of Texas. Austin. January 30, 1913. Rehearing Denied March 5, 1913.

Error from District Court, Bell County; John D. Robinson, Judge.

Action by the Beaumont Land & Building Company against James E. Ferguson and others, with cross-bill by defendant Ferguson. From the judgment he brings error, and defendants move to dismiss the writ. Writ dismissed.

Spann & Spann, of Temple, for plaintiff in error. Hair & Woodward, of Temple, for defendants in error.

KEY, C. J.

The Beaumont Land & Building Company, a private corporation, brought suit in the district court against Jas. E. Ferguson and T. J. Wood, H. M. Hargrove, and J. Austin Strange, composing the firm of Wood, Hargrove & Strange, seeking to recover upon a promissory note for $2,000 executed by Jas. E. Ferguson, and payable to the order of Wood, Hargrove & Strange, and to foreclose a lien upon 10 shares of the capital stock of the Empire Life Insurance Company. The plaintiff alleged that the note had been assigned to it, and was secured by 10 shares of the capital stock of the Empire Life Insurance Company, attached by Ferguson to the note as collateral security therefor. The defendant Ferguson filed an answer, which, among other things, contained averments to the effect that he purchased 10 shares of the capital stock of the Empire Life Insurance Company, and executed the note sued on in payment therefor; that in the negotiations which resulted in the execution of the note and the delivery to him of the shares of stock the insurance company was represented by the firm of Wood, Hargrove & Strange, and that the agents referred to, acting for the Insurance Company, made certain false and fraudulent representations, by which he was induced to purchase the 10 shares of stock, and execute the note, and he prayed that the Insurance Company be made a party to the suit, that the contract be rescinded and the note sued on be canceled, but that in the event that the plaintiff was no innocent purchaser, as alleged in its pleading, then he prayed for judgment against the Insurance Company for $2,500 damages. That pleading was followed by another setting up a cross-action against the defendants Wood, Hargrove & Strange, alleging that, if the Insurance Company was not bound by the fraudulent misrepresentations made by Wood, Hargrove & Strange, he was entitled to judgment against the latter, and that plea concluded with a prayer that in the event of the plaintiff's recovery against him, Ferguson, and in the event that he was not entitled to a judgment over against the Insurance Company, then he asked for judgment over against Wood, Hargrove & Strange jointly and severally for the amount of the plaintiff's recovery against him, etc. The Insurance Company and Wood, Hargrove & Strange filed answers controverting the averments above referred to, and denying liability thereon. The plaintiff filed a supplemental petition, contending a general denial, alleging facts necessary to show that it was entitled to protection as an innocent holder of the note, etc. There was a trial before the jury, which resulted in a judgment for the plaintiff against the defendant Ferguson as principal, and Wood, Hargrove & Strange as indorsers for $2,386, and a foreclosure of the lien on the collateral security above referred to. It provides that execution is first to issue against the property of Ferguson, and that Wood, Hargrove & Strange are only liable for such amount of the judgment as cannot be collected from Ferguson. Judgment was also rendered for the defendant Ferguson on his cross-action against the Empire Life Insurance Company for $928.22; and it was also adjudged and decreed that the defendant Ferguson take nothing on his cross-bill against the defendant Wood, Hargrove & Strange, and that he pay the costs incurred on account of such cross-action. The defendant Ferguson filed in the court below a petition for writ of error, in which he set forth that portion of the judgment...