Hurd v. Texas Brewing Co.

• Decision Date: 20 May 1899
• Citation: 51 S.W. 883
• Parties: HURD v. TEXAS BREWING CO.
• Court: Texas Court of Appeals

51 S.W. 883

HURD v. TEXAS BREWING CO.

Court of Civil Appeals of Texas.

May 20, 1899.

Error from district court, Tarrant county; Irby Dunklin, Judge.

Action by Andrew R. Hurd against the Texas Brewing Company. From a judgment

in favor of defendant, plaintiff brings error. Affirmed.

Bomar & Bomar, for plaintiff in error. W. R. Sawyers, for defendant in error.

CONNER, C. J.

Briefly stated, this was a suit by plaintiff in error against defendant in error in which it was alleged by plaintiff, in substance, that in January, 1895, defendant in error declared a dividend of $1,900 on 475 shares of its capital stock at the time and theretofore owned by plaintiff in error, which it had failed to pay plaintiff. Defendant in error answered, in substance, that plaintiff was not the real owner of said stock; that it had been issued to said plaintiff in error as naked trustee only, to secure a debt of $46,000 due the National Bank of Commerce by the firm of Casey & Swasey, a co-partnership composed of Martin Casey and C. J. Swasey; that said bank was at the time of said dividend the real owner of said stock, and that said dividend had been paid to Casey & Swasey, who paid the same to said bank, since which time Casey & Swasey had paid off and discharged the said $46,000 indebtedness; and it impleaded Casey & Swasey, and prayed for judgment against them for any sum that might be adjudged against it. Casey & Swasey appeared, and answered, setting up substantially the same facts as set up by defendant in error, and further alleged that said $46,000 indebtedness had been paid off by the sale of said 475 shares of stock by said bank with which it had been deposited as security as aforesaid, and that the proceeds of such sale resulted in an excess of $785 that had been by said bank illegally applied to an individual indebtedness of Martin Casey. There was a trial, and judgment, January 18, 1898, that plaintiff in error take nothing as against defendant in error, and that defendant in error take nothing as against Casey & Swasey.

The following facts were shown: The certificate of stock described by the plaintiff in error was issued to Andrew R. Hurd for 475 shares in May, 1894, transferable only on the books of the company; the shares being for $100 each. On July 16, 1894, a note for $46,000, given for the indebtedness above referred to, was signed by Casey & Swasey, Martin Casey, and C. J. Swasey. In said note it was recited that said stock was pledged as collateral security to secure the same. It had the following further provision: "Deposited with said bank as collateral security for the payment of this note, and to be held as security for the payment of this or any other liability of the undersigned to said bank, due or to become due, now contracted or hereafter to be contracted, the following property." Said 475 shares of stock were then described. Said note also gave the bank the right to sell said stock in case of default, etc. It was shown by the cashier of the said National Bank of Commerce that 475 shares of the capital stock of the brewing company were turned over to the National Bank of Commerce as collateral to secure said note, and it was agreed that the same should be issued by the brewing company in the name of Andrew R. Hurd, and held as collateral to secure said bank in the payment of said note; that said Hurd had no interest at any time in said stock, save as trustee; that about March 25, 1895, said note fell due, and was paid by the sale of said collateral of 475 shares of stock, under the power of sale in the note; that there was left after the payment of said note by the sale of the collateral $785. It was further shown that a dividend of 4 per cent. on the capital stock of the Texas Brewing Company had been declared in January, 1895, said dividend amounting to the said sum of $1,900, and that said dividend was paid to Casey & Swasey. It was further shown by Martin Casey, among other things, that he had collected said dividend in January, 1895, and paid the same to the National Bank of Commerce.

The court excluded evidence offered by plaintiff in error to show that the stock in question was held as collateral to secure the payment of two other notes besides the $46,000 note, on the ground that plaintiff had not pleaded said other notes. The other notes referred to were: One note executed by Martin Casey, payable to ...