Greer v. Featherston

• Decision Date: 04 April 1902
• Citation: 68 S.W. 48
• Parties: GREER et al. v. FEATHERSTON.
• Court: Texas Court of Appeals

68 S.W. 48

GREER et al. v. FEATHERSTON.

Court of Civil Appeals of Texas.

April 4, 1902.

Appeal from district court, Clay county; A. H. Carrigan, Judge.

Action by W. H. Featherston against Greer, Mills & Co. From a judgment for plaintiff, defendants appeal. Reversed.

Capps & Cantey and Theodore Mack, for appellants. Allen & Wantland, J. A. Templeton, and Matlock, Miller & Dycus, for appellee.

STEPHENS, J.

This appeal is from a judgment allowing appellee $1,000 as compensation for services rendered appellants from July 7 to December 21, 1899, and $50.65 as incidental expenses incurred for the benefit of appellants. Appellee residing at Henrietta, Tex., undertook to represent appellants, five stock commission merchants doing business at Chicago and other cities, as soliciting agent in Texas for the year 1899, as he had done during preceding years, at a salary of $2,500, payable monthly, and such reasonable expenses as appellants had been in the habit of allowing him. The business or employment so undertaken was such as soliciting agents for live stock commission companies usually do or perform, and required appellee to solicit shipments of cattle and to make and solicit loans for appellants. In making loans, appellee was required to become responsible equally with the borrower, and to add his own name to the notes, which were usually secured by mortgages on cattle, in which he was made trustee, and which were made payable to appellants, and by them assigned in the course of their business to others. His liability was thus expressed on each note: "For value received, I hereby guaranty the payment of the within note at maturity, or any time thereafter, with interest at 7 per cent. per annum until paid, and agree to pay all costs and expenses about or incurred in collecting the same." Included within the duty of soliciting shipments of cattle was that of making commission contracts, and collecting the usual commission of 50 cents a head when the cattle were not shipped to appellants in accordance with these contracts; but the business was principally a money-lending business. The commission year began with February, and loans were made or renewed in the spring and fall on from six to eight months' time. It was the duty as well as to the interest of appellee to look after these loans, covering, as they did, movable security, in order to protect the holders and indorsers of the notes, and himself as co-maker and guarantor. Appellee received his salary in monthly payments up to July 7, 1899, when his employment ceased, as will be seen, we think, from the following correspondence:

"Henrietta, Texas, July 3rd, 1899. J. E. Greer, Esq., Union Stock Yards, Chicago, Ill. —Dear Sir: I do not want to loan any more commission money. I have several reasons for my not wanting to do so. One is on account of the state of my health. I am not able to look after such matters as carefully as I would want to. Another is, the risk is too great for me to take, where I have to indorse all paper. I thought best to write you this at once, so, if you had another application for money in this territory, you could have some one else to look after it. My health is some better since I had the operation performed in New York, but am not well, by any means. Am working all the time, but am very weak. Respectfully yours, W. H. Featherston."

"Union Stock Yards, Chicago, July 7, 1899. W. H. Featherston, Henrietta, Texas—Dear Sir: In reply to your letter of July 3rd, would say we are sorry to lose you from our force of solicitors; but, of course, if you cannot see your way clear in the future to sign paper on loans that you make for us, and your health is not good enough to look after the business, we cannot blame you for wishing to quit. Hereafter you will kindly refer applicants to George Beggs, at Fort Worth. We will try and take care of them when it is desirable. Yours truly, Greer, Mills & Co."

July 8, 1899, and before he had received the letter of July 7th, appellee wrote appellants as follows:

"Under the present condition of affairs, I do not think it is right that I should remain in your employ any longer. In the past I have been loyal to Greer, Mills & Co., but since showing the disposition you have, to treat me, as I think, in a very unfair way, it would be impossible for me to be as loyal towards you as I think I should be for a firm that I am working for, and feel that it would be dishonest in me to continue longer; but, as there is considerable paper out that I am responsible for, it will be quite a while before it all matures, and I will have to look after the collection of the same, as well as being responsible, and, of course, will not want to do this without compensation. Neither would I agree for any one else to take charge of this paper, and I continue to be responsible for the payment. I would suggest this, that you investigate all the paper that I have out, and, if you find it safe, release me from any further responsibility."

Again, on September 8, 1899, he wrote them as follows:

"Referring to my letter to you of date July 8th, 1899, I have to say that you have never informed me as to whether I would still be held on the paper referred to in said letter. Of course, if you expect to hold me responsible for the payment of said paper, I will have to be paid for my time in collecting it, which will amount to what my salary was. Please notify me by return mail whether you have released me on paper indorsed by me, and held or negotiated by you. If you decline to do so, I will consider that you owe me salary at the rate of $2,500.00 per year up to the time of maturity of all said paper."

To this appellants replied by...