Houston Ice & Brewing Co. v. Nicolini

• Court: Texas Court of Appeals
• Writing for the Court: Neill
• Citation: Houston Ice & Brewing Co. v. Nicolini, 96 S.W. 84 (Tex. App. 1906)
• Decision Date: 06 June 1906
• Parties: HOUSTON ICE & BREWING CO. v. NICOLINI.<SMALL><SUP>*</SUP></SMALL>

96 S.W. 84

HOUSTON ICE & BREWING CO. v. NICOLINI.^*

Court of Civil Appeals of Texas.

June 6, 1906.

On Rehearing, June 29, 1906.

Appeal from District Court, Galveston County; R. G. Street, Judge.

Action by C. Nicolini against the Houston Ice & Brewing Company and others. From a judgment for plaintiff, defendant company appeals, and plaintiff filed cross-errors. Judgment modified and affirmed.

Terry, Covin & Mills and Baker, Botts, Parker & Garwood, for appellant. W. C. Oliver and Jas. B. & Chas. J. Stubbs, for appellee.

NEILL, J.

On December 9, 1903, the appellee, C. Nicolini, sued appellant, the Houston Ice & Brewing Company, a domestic corporation, and Hugh Hamilton, Joseph F. Meyer, R. L. Autry, and F. Kelb, as trustees of a dissolved corporation known as the Houston Ice & Brewing Company to recover the sum of $17,192.82, alleged due him for commissions and on his salary. He alleged substantially, as his cause of action: That, on December 1, 1896, the Houston Ice & Brewing Company, a corporation, whose charter was annulled by a judicial decree on December 14, 1901, by a contract in writing, employed him as its agent in Galveston county, Tex., for a term of three years, commencing December 10, 1896, at a salary of $150 per month, and a commission of 50 cents per barrel upon each barrel of beer thereafter sold by plaintiff as agent of said company, plaintiff engaging by said contract to serve said company during the term thereof, obligating himself to sell for it in Galveston county not less than 6,000 barrels of beer per annum during the period of existence of the contract in accordance with the terms and conditions specified therein. That plaintiff rendered the services as required by said contract, and the renewals thereof, afterwards pleaded. That the written contract, according to its terms, expired on December 9, 1899, and no new written contract was executed by plaintiff and said corporation, but plaintiff by agreement continued to act as agent of said company upon the same terms and conditions expressed in the former contract, except that his salary had been raised during the existence of said contract from $150 to $225, and was thereafter raised to $275 per month without any change of the other conditions of his employment or the other compensation thereunder, it being agreed between the company and plaintiff; that when the commissions referred to in the written contract should amount to enough to extinguish plaintiff's debt ($14,100) to the company, as expressed therein, the further commissions to be earned by plaintiff should be due and payable to him directly. That said written contract was continued in force without further writing by the continued employment of plaintiff by said company and its successors, as set forth in plaintiff's petition, there being no stipulation changing the terms of the same except as stated. That the Houston Ice & Brewing Company, referred to as the former company of that name, on December 14, 1901, ceased to exist, its charter having been forfeited by the district court of Travis county, Tex., in a suit brought by the state of Texas for that purpose; that from and after the decree of forfeiture, up to January 1, 1902, the defendants Autry, Hamilton, Meyer, and Kalb, and others, directors of said former company at the time it lost its charter, acted under the statute as trustees, holding all of the property and assets in trust for the benefit of the creditors and stockholders of the old company, and said assets were charged with the liabilities of said company, both in the hands of said trustees and thereafter, when the same had been transferred and delivered by said trustees to the present Houston Ice & Brewing Company, defendant herein, and said trustees and the defendant company adopted the contracts and agreements of the old company with respect to employment and compensation of this plaintiff by retaining him in their service under and in accordance with the terms of said former employment, and also agreeing with him that his employment should continue in force; and that said trustees and defendant company not only accepted, recognizing and renewed plaintiff's employment, but received the benefit therefrom, without denial or repudiation of pre-existing terms of compensation. That all of said agreements not expressed in the written contract, were agreed upon by and between the parties to said contract after its execution, and subsequently, by and with the other defendants, it being agreed and understood that such changes and modifications in salary, and otherwise as stated, should have the same force and effect as if written and a part of the original instrument, or of any renewal or extension thereof, whether verbal or in writing. That when said former company ceased to exist as hereinbefore shown, its trustees and the present company renewed, recognized, and continued its engagements and liabilities in force, including those herein sued on. That the number of barrels of beer sold by plaintiff under the said contract and renewals thereof is set forth in the accompanying written account attached to the petition which is as follows:

"Statement of C. Nicolini of Galveston, Texas, with the Houston Ice & Brewing Company and the Trustees of Houston, Texas.

"As stipulated in contract, the Houston Ice & Brewing Company owes me as follows:

Dec. 10, 1896, to Dec. 9, 1897, beer
                 sold in one year, 11,302 bbls., at
                 50 cents......................................  $ 5,651 00
                Dec. 10, 1897, to Dec. 9, 1898, 11,271
                 bbls., at 50 cents............................    5,635 50
                Dec. 10, 1898, to Dec. 9, 1899, 11,128
                 bbls., at 50 cents............................    5,664 00
                Dec. 10, 1899, to Dec. 9, 1900, 10,586
                 bbls., at 50 cents............................    5,293 00
                Dec. 10, 1900, to Dec. 9, 1901, 12,721
                 bbls., at 50 cents............................    6,360 50
                Dec. 10, 1901, to Dec. 9, 1902, 12,721
                 bbls., at 50 cents (figuring on the
                 same amount of sales as the previous
                 year).........................................    6,360 50
                July 1, 1898, balance due to Messrs
                 Adoue & Lobit bank, which should
                 have been paid by Mr. H. Hamilton
                 for debt as promised..........................      750 00
                Dec. 10, 1902, due me for 8 months
                 wages, from April 9, 1902, to Dec
                 9, 1902, at $275.00 per month.................    2,200 00
                                                                 __________
                    Total amount due me........................  $37,814 50
                

Amount due by C. Nicolini to the Houston Ice & Brewing Company:

Dec. 1, 1896, 3 notes for $4,700.00
                 each, payable 1, 2 and 3 years respectively...  $14,100 00
                July 19, 1906, paid to Adoue & Lobit
                 for my account................................      500 00
                Nov. 30, 1900, received on account.............    1,300 00
                June 12, 1901, received on account.............      806 00
                July 18, 1901, received on account
                 to settle Loan Co. ............................   1,365 00
                April 9, 1902, due to them on open
                 account........................................   1,350 70
                Dec. 9, 1902, salary paid to D. Rossie
                 from April 9, 1902, to Dec. 9,
                 1902, 8 months at $150.00.....................    1,200 00
                                                                 __________
                                                                 $20,621 70
                                                                 __________
                        Difference in my favor.................  $17,192 80
                

—with the exception of those from December 10, 1901, until December 9, 1902, during the greater part of which period plaintiff was absent from said county with leave of said company's successors, defendants herein, and plaintiff has no positive knowledge of the number of barrels sold during that time by his subagent, and defendants fail and refuse to advise him of the number, and he, therefore, estimates it upon the basis of sales made during the preceding year, as shown in the exhibit, and he alleges the sales of beer made by him and his subagent for defendants during the year ending December 9, 1902, to have been not less than 12,721 barrels. That the amount due plaintiff for commissions upon all such sales for six years is $34,864.50, which sum was a fair and reasonable compensation for plaintiff's services rendered defendant and its predecessors in addition to the salary paid and agreed to be paid plaintiff by them during the six years ending December, 9, 1902, and which reasonable value of plaintiff's services defendants promised and undertook to pay plaintiff, and have wholly failed and refused so to do except as shown by said account, which shows there is still a balance due plaintiff of $17,192.80, with legal interest from the last day of the respective year in which said commissions were earned; for which plaintiff prayed judgment.

A plea of privilege was interposed by the individual defendants, which was sustained. The defendant Houston Ice & Brewing Company answered, denying owing the plaintiff anything, but claimed an indebtedness against him, and, with its answer filed a cross-bill asking judgment against plaintiff for $15,328.30 on account of certain open accounts and notes held by it. The case was tried before a jury and the trial resulted in the following verdict:

       "Galveston, Texas, July 12, 1903
                

"We, the jury, find for the plaintiff on his claim for commissions against the defendant in the sum of $5,234.50, with interest at 6 per cent. per annum from January 1, 1903 (commission on 10,469 barrels of beer at 50 cents per barrel), and for salary in the sum of $1,000.00, being the difference between Mr. Rossi's salary and his, with 6 per cent. interest from January 1, 1903, to date. We also find in favor of the plaintiff against the former Houston Ice & Brewing Co., on his claim for commissions in the sum of $5,293.25, and $6,305.30, for the years ending December 10, 1900, and 1901, with interest at 6 per cent. per annum from 1st of January, 1901, and January 1, 1902, to July...