Finley v. Stripling

• Decision Date: 16 March 1929
• Docket Number: (No. 1784.)
• Citation: 15 S.W.2d 711
• Parties: FINLEY v. STRIPLING.
• Court: Texas Court of Appeals

Page 711

15 S.W.2d 711

FINLEY v. STRIPLING.

(No. 1784.)

Court of Civil Appeals of Texas. Beaumont.

March 16, 1929.

Rehearing Denied March 27, 1929.

Error from District Court, Nacogdoches County; C. A. Hodges, Judge.

Action by J. B. Finley against G. E. Stripling. Judgment for defendant, and plaintiff brings error. Affirmed.

Adams & McAlister, of Nacogdoches, for plaintiff in error.

Greve & Tucker, of Nacogdoches, for defendant in error.

O'QUINN, J.

We shall refer to plaintiff in error as plaintiff and to defendant in error as defendant, that being their status in the trial court.

Plaintiff sued defendant in the district court of Nacogdoches county to recover in the sum of $4,000. In view of the nature of the suit and the action of the court in passing upon the sufficiency of plaintiff's petition, the petition will be set out in full.

Plaintiff's petition, omitting formal parts, reads:

"2. That on and prior to the 1st day of June A. D. 1924, E. B. Norman & Co. were engaged in the cotton and grain brokerage business, and as such maintained and kept open an office in the city of Nacogdoches, Texas, and as such operators of the aforesaid office, were members in good standing of the New Orleans Cotton Exchange and were affiliated and connected with said Exchange on the floor of said Exchange in such manner as to receive and execute, on said New Orleans Cotton Exchange, orders for cotton and grain futures, under and by virtue of the rules and regulations governing said New Orleans Cotton Exchange; and the said E. B. Norman & Co., was the owner and operator of the Nacogdoches Cotton Exchange, and as such were in good standing and doing business according to the laws of Texas governing the buying and selling of cotton and grain futures on the New Orleans Cotton Exchange floor at New Orleans and in conformity with the Cotton Future Act of the United States laws, of date of August 11, 1916.

"3. That on or about the 1st day of April, A. D. 1924, the plaintiff and defendant entered into a verbal contract, whereby they were to buy and sell futures in both cotton and grain through the Nacogdoches Cotton Exchange owned and operated in the City of Nacogdoches, by E. B. Norman & Co.; and that the plaintiff was to execute and run the business of buying and selling in any way that might be best in his judgment; and that the parties were to receive one-half of the profit and share equally one-half of the losses in the project so long as the partnership existed, and in pursuance to said verbal contract, the plaintiff did engage in, buy and sell futures for and in behalf of the plaintiff and defendant according to the rules and regulations governing and buying and selling of cotton futures through the Nacogdoches Cotton Exchange to E. B. Norman & Co., of New Orleans, and while so engaged in carrying out the partnership, the plaintiff delivered and requested various executions of written order for cotton and grain of the New Orleans Cotton Exchange Floor, and that said orders were delivered and executed in accordance with the rules and regulations of the New Orleans Exchange, and were received and executed by the said E. B. Norman & Co., for the plaintiff on the floor of the New Orleans Cotton Exchange at New Orleans, and while the said E. B. Norman & Co. were in good standing with said Exchange, in behalf of and for the benefit of the plaintiff and defendant, and that during the months of April, May and June, 1924, and up to and including the 25th day of June, A. D. 1924, the plaintiff and defendant in accordance with said agreement executed various and sundry orders for cotton and grain futures on the New Orleans Cotton Exchange by and through E. B. Norman & Co. who were at the time of receiving the orders for execution in behalf of the plaintiff and defendant in good standing with said Exchange and were granted the rights and privileges of executing on the floor of the cotton exchange orders for various and sundry persons, according to the laws of Texas and in the light and in accordance and conformative with the Cotton Future Acts of the United States Laws of August 11th, 1916.

"4. And after entering into the aforesaid verbal contract and after conducting the partnership during April, May and June, 1924, and while so engaged, plaintiff and defendant lost $8,000, and that the said $8,000 was paid to E. B. Norman & Co. at the special instance and request of the defendant, which amount was paid by plaintiff for the project entered into by and between the plaintiff and defendant, and the amount was agreed to by and between the plaintiff and defendant, on October 15, 1924, and that the defendant on this date, agreed and had a settlement with the plaintiff for the transaction of cotton futures under and by virtue of the verbal agreement, and obligated and bound himself to pay to the plaintiff one half of the amount lost, to wit, one-half of $8,000, being $4,000, and the agreements had for payment of the same was as follows, to wit:

"The payment of $500 February 1st, A. D. 1925, and the balance of $3,500 and interest to be paid on or before October 15, 1925.

"5. That at the time of the adjustment of the difference between plaintiff and defendant for the transaction of the partnership as aforesaid, the defendant, to better secure said account, made, executed and delivered to the plaintiff his deed of trust on the following described real estate, situated in Nacogdoches county, Texas, and described thus: `All that certain lot and parcel of land being situated in city of Nacogdoches, being a part of Starr survey, known as Sam Houston grant, beginning in the E. margin of Mound St., a S. W. cor of a lot described in a deed from W. U. Perkins to P. E. DeLamar, now owned by J. B. Atkins, and being the N W cor of the lot herein conveyed; Thence...