Guardian Trust Co. v. Studdert

• Decision Date: 12 February 1931
• Docket Number: No. 2030.,2030.
• Citation: 36 S.W.2d 578
• Parties: GUARDIAN TRUST CO. v. STUDDERT.
• Court: Texas Court of Appeals

36 S.W.2d 578

GUARDIAN TRUST CO. v. STUDDERT.

No. 2030.

Court of Civil Appeals of Texas. Beaumont.

February 12, 1931.

Rehearing Denied March 18, 1931.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit by James H. Studdert against the Guardian Trust Company, as executor of the estate of H. Hamilton, deceased. Judgment for plaintiff, and defendant appeals.

Reversed, and judgment rendered for defendant.

Baker, Botts, Parker & Garwood, of Houston, for appellant.

Andrews, Streetman, Logue & Mobley, of Houston, for appellee.

WALKER, J.

On August 17, 1907, appellee, James H. Studdert, executed and delivered to H. Hamilton his promissory note as follows:

                "$26,250/00
                        "Houston, Texas, Aug. 17th, 1907
                

"Five years after date, I promise to pay to H. Hamilton or order the sum of twenty-six thousand two hundred and fifty no/100 dollars, at Houston, Texas, for value received, with interest at the rate of six per cent per annum from date.

"This note is given in payment for one hundred and fifty shares of the capital stock of the Houston Ice & Brewing Company this day bought from H. Hamilton, and to secure the payment of the same, certificates of the capital stock of the Houston Ice and Brewing Company for one hundred and fifty shares are hereto attached.

"The dividends earned by this stock attached hereto shall be and are payable to H. Hamilton and are to be credited on this note.

                              "[Signed] J. H. Studdert."
                

On the same day Mr. Hamilton executed and delivered to appellee his contract, as follows:

"The State of Texas, County of Harris.

"Be it known hereby that I have sold James Studdert, my faithful employee and true friend, 150 shares of the stock of the Houston Ice & Brewing Co. @ $175.00 per share, $26,250.00, or for the total sum of twenty-six thousand two hundred and fifty dollars as evidenced by his note for the said sum of $26,250.00 payable to my order, due five years after date.

"I hand this to Mr. Studdert to witness my acknowledgment that I hold his note; and my agreement that I require that all dividends that may be paid upon the said 150 shares of stock shall be paid to me for the full five years unless the dividends should sooner liquidate the amount of his note; and to further witness my agreement that I look to the dividends upon the stock to pay out the note and if the same is not paid by the dividends within 5 years then in that event Mr. Studdert may pay me the balance that may remain due at the end of the 5 years, or maturity of the note, in cash or Mr. Studdert may surrender the stock to me and I will accept the same in full payment of the note and surrender the said note to Mr. Studdert cancelled and receipted in full, just as Mr. Studdert may elect.

"I further acknowledge that to the note of Mr. Studdert herein mentioned there is attached certificates of the stock of the Houston Ice & Brewing Company for one hundred and fifty shares.

                  "Houston, Texas, Aug. 17th, 1907
                                 "[Signed] H. Hamilton
                  "Witness at request of Mr. Hamilton
                  "[Signed] R. L. Autrey."
                

Beginning with October 31, 1907, and continuing to August 20, 1914, practically all of the stock mentioned in this contract was carried on the books in Mr. Hamilton's name and all dividends on this stock were paid to Mr. Hamilton and charged to him on the books of the Houston Ice & Brewing Company. On the 22d day of June, 1913, appellee paid $1,000 in cash to Mr. Hamilton. On January 5, 1909, a stock certificate for 9½ shares was issued to appellee on his contract; on February 29, 1911, another certificate for 25 shares was issued and delivered to him. On or about the 20th day of August, 1914 Mr. Hamilton surrendered to appellee his note with the dividend statement indorsed thereon showing excess dividends collected on the stock in the language of the indorsement as written on the note, "Balance due Studdert $11,582.91." On the 19th day of October, 1914, the balance of the stock was issued and delivered to Studdert and from that date all future dividends on the stock were paid to appellee. Mr. Hamilton died on August 5, 1922, and appellant duly qualified as executor of his will, having been named such by the terms of the will. After the death of Hamilton and the qualification of appellant as his executor, appellee, claiming that Hamilton was due him a balance of excess dividends, in the sum of $20,859.95 collected by Hamilton prior to the settlement of 1914, presented his claim for that sum to appellant as executor, which claim was in all respects refused. Thereupon, appellee instituted this suit to recover his claim.

In addition to alleging the execution of the note and contract set out above, and the collection of all dividends on the stock by Hamilton to August 20, 1914, and the payment by him to Hamilton on the 22d day of June, 1913, of the $1,000, which he alleged was paid as a credit on the note, he further alleged, in substance, quoting from appellant's brief:

"That the relations between appellee and Hamilton were at such time and for many years prior thereto of the most friendly and confidential nature."

"That subsequent to August 20, 1914, appellee and Hamilton caused a check to be made of the dividends paid to Hamilton and it was then found that the note had been overpaid and that Hamilton had in his hands a large sum of money so overpaid. That Hamilton thereupon delivered the stock to appellee and stated to appellee that whenever he desired to have the money the amount would be definitely ascertained and promptly paid, pending which it would be safely kept for appellee. That having confidence in said Hamilton appellee never made any request or demand for said sum of money prior to the death of Hamilton, which occurred August 5, 1922."

"That prior to the maturity of the note the dividend paid to Hamilton had overpaid the note by the sum of $359.95 and thereafter Hamilton received the additional sum of $20,500.00, making a total of $20,859.95 which Hamilton was obligated to pay. That after the death of Hamilton and the qualification of appellant as Executor and Trustee, to wit, August 1, 1923, appellee made demand for the payment of this sum, which was refused. Prayer was for judgment for $20,859.95 with interest at 6% per annum after August 1, 1923."

A theory of appellee's petition was that Hamilton, after the settlement of 1914, held the excess dividends in trust for appellee from the date of that settlement to the time of his death. Appellant summarizes its answer as follows:

"1. A general demurrer.

"2. A special exception based on the statutes of limitation.

"3. A special exception based on laches and stale demand, due to the death of Hamilton and long lapse of time.

"4. A general demurrer.

"5. A plea of limitation under the two and four years statutes.

"6. A plea of laches and stale demand, based on long lapse of time and the death of Hamilton.

"7. A special plea to the effect that the facts were sufficient to establish (a) accord and satisfaction, (b) a conclusive presumption that any sums which may have been due by Hamilton to appellee had been paid, and (c) that appellee had waived all rights and was estopped to claim that he had not been paid."

On conclusion of the evidence, appellant filed its motion for an instructed verdict, which was overruled; whereupon the following special issues were submitted to the jury, answered as indicated:

"Special Issue No. 1.

"Did H. Hamilton receive any dividends from the stock sold by him to James H. Studdert? If so, please state the dates and amounts in dollars and cents."

Answer: "Yes. Oct. 31, 1907, $1500.00; July 20, 1908, $1500.00; Aug. 31, 1908, $1500.00; May 15, 1909, $3750.00; Nov. 26, 1909, $3750.00; Feb. 16, 1910, $1650.00; Aug. 31, 1910, $6,000.00; July 25, 1911, $7500.00; Jan. 15, 1912, $1875.00; Mar. 4 or 14, 1912, $2250.00; Nov. 30, 1912, $1500.00; July 9, 1913, $3750.00; Sept. 9, 1913, $3750.00; May 25, 1914, $7500.00; Aug. 20, 1914, $3000.00."

"Special Issue No. 2.

"Of the dividends, if any, received by H. Hamilton, on the 150 shares of stock sold by him to Studdert, did the said Hamilton pay any part thereof to said Studdert in any manner other than by applying the same to the satisfaction of the principal and interest on Studdert's note to Hamilton?"

Answer: "Yes. $9150.00."

"Special Issue No. 3.

"At the time that the certificate for 115½ shares of stock was delivered by Hamilton to Studdert, did Studdert waive any claim that he had to any dividends that might have been collected by Hamilton in excess of the amount due for the stock."

Answer: "He did not."

"Special Issue No. 4.

"Did Studdert accept the figures endorsed on the back of the note by Autrey as a true and correct statement of the amount he claimed to be due him by Hamilton?"

Answer: "He did."

Judgment was entered in appellee's favor for the amount found by the jury to be due him, with interest.

In view of the disposition we are making of this case, it is not necessary to review and discuss in detail the following propositions advanced by appellant: (a) Appellee failed to prove that the balance stated on the note as the amount due him by Hamilton was unpaid; (b) under the undisputed facts surrounding and explaining the settlement of 1914, the relations between appellee and Hamilton were reduced to "an account stated"; (c) the contract and agreement between appellee and Hamilton did not create an express trust as of date August 17, 1907, appellant's contention being "that the transaction amounted only to an executory agreement, and the equitable title to the stock did not vest in appellee at the time of the execution of the instrument"; (d) the $1,000 paid on June 22, 1913, as an independent item of recovery was barred by limitation. If we understood appellant correctly, this proposition (d) was abandoned on oral argument. It is sufficient to say that the evidence supports the jury's answer on all issues...