Hamblen v. Horwitz-Texan Theatres Co., 11403.

• Decision Date: 30 April 1942
• Docket Number: No. 11403.,11403.
• Citation: 162 S.W.2d 455
• Parties: HAMBLEN v. HORWITZ-TEXAN THEATRES CO., Inc.
• Court: Texas Court of Appeals

Page 455

162 S.W.2d 455

HAMBLEN v. HORWITZ-TEXAN THEATRES CO., Inc.

No. 11403.

Court of Civil Appeals of Texas. Galveston.

April 30, 1942.

Rehearing Denied May 21, 1942.

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

Suit by Horwitz-Texas Theatres Company, Incorporated, against W. P. Hamblen, individually, and as independent executor and trustee under the will of Will Horwitz, deceased, to enjoin the defendant from interfering with the management and control of the plaintiff's conduct of its own business affairs, by and through its acting directors and officers. From a judgment temporarily enjoining the defendant, the defendant appeals.

Judgment affirmed.

W. P. Hamblen, Jr., Albert J. DeLange, Frank A. Stamper, and R. P. Beman, Jr., all of Houston, for appellant.

John P. Bullington, of Houston (Baker, Botts, Andrews & Wharton, of Houston, of counsel), for appellee.

GRAVES, Justice.

This appeal, pursuant to Rule 385(d), Texas Rules of Civil Procedure, is from an order of the 80th District Court of Harris County, entered after an extended hearing at which evidence was presented, temporarily enjoining the appellant, individually and as independent executor and trustee under the will of Will Horwitz, deceased, from interfering with the management and control of the appellee corporation's conduct of its own business affairs, by and through its acting directors and officers, whom the court found to have been theretofore duly elected and qualified, as well as to be lawfully acting as such at that time, to-wit, January 30, 1942. Its terms further interdicted him from "attempting to influence or control the employees of Horwitz-Texan Theatres Company, Inc., or any of them, in connection with their duties as employees of said Horwitz-Texan Theatres Company, Inc., until final hearing hereon."

In so doing, the court overruled the main contention of the appellant, made initially below, and reiterated here, that, being clothed with the capacities indicated, he had a contractual right not only to be at that time president and director of the appellee corporation, but also to manage, direct, and control its corporate affairs, to the exclusion of its then existing board of directors, whom he admitted to have been so duly elected and qualified for their offices, but whom he claimed to have been shorn of all official authority by the contractual relation he declared upon.

The court supported its decree by full findings of fact and law, continuing the pre-existing status quo of the corporation's pursuit of the purposes of its creation by leaving it under the management of its officers and board of directors, upon stated conclusions to the effect that, under the Texas laws, such board of directors had both the right and the duty to manage and control its affairs, and that appellant's attempt to interfere therewith was unwarranted and unlawful.

These findings need not be at length repeated here, but only what are deemed to be the determinative features will be adverted to.

The substratum of appellant's cause of action was the contract or agreement made on February 13, 1928, at New Orleans, Louisiana, between "Will Horwitz, and associates", constituting all of the stockholders of Horwitz-Texan Theatres Company, Inc., on the one hand, and Texas Theatres Company, a Delaware Corporation, on the other hand.

At the threshold it is thus shown to have been one between all the stockholders of this appellee as individuals, on the one side, and the Delaware Corporation as a like stockholder, on the other; that is, it was not one between this appellee's board of directors and officers, acting for it, but one between its individual stockholders, pooling their individually owned stock in the appellee corporation with that of the other contracting party, the Delaware Corporation, that, in turn, owned certain stock in other theatre companies in Houston, in which "Will Horwitz and associates" were jointly interested, for stock-pooling purposes between the two such parties, deemed by them to be to their mutual advantage.

So that, upon the face of it, this basic contractual right the appellant declared and acted upon throughout the transactions reflected by this litigation, was not at its inception, nor was it thereafter in any way developed or metamorphosed into an agreement of any other character.

The gist of that contract, the full implications and detailed meanings in which are so comprehensively detailed in the trial court's findings, was thus a pooling by those parties of their separately-owned blocks of stock, in what was generally known, as the Will Horwitz Theatres in Houston, for operative purposes, and, as a major part of it, they agreed to jointly form another corporation to thereafter take over and operate the interests of both sides, as evidenced by this part of paragraph 1 thereof:

"I. Parties hereto agree to form forthwith a corporation under the laws of the State of Louisiana (or such other state as may be determined by their counsel), which shall have a capital stock with shares of nominal or no par value. One-half of said capital stock shall be acquired by the parties of the first part, and the other one-half shall be acquired by the party...