Irwin v. Prestressed Structures, Inc.
| Decision Date | 17 September 1971 |
| Docket Number | No. 4484,4484 |
| Citation | 471 S.W.2d 865 |
| Parties | Sherman IRWIN, Appellant, v. PRESTRESSED STRUCTURES, INC., Appellee. |
| Court | Texas Court of Appeals |
Garner & Walters, James A. Walters, Lubbock, for appellant.
Evans, Pharr, Trout & Jones, Charles B. Jones, Jim Kimmel, Nelson, McCleskey, Harriger & Brazill, George W. McCleskey, Lubbock, for appellee.
Sherman Irwin filed suit against Prestressed Structures, Inc., hereinafter referred to as Corporation, J. B. White, Ralph Coconaugher, Lofflin Irwin and John A. Flygare on an oral employment contract. The jury answered the limitations and the estoppel issues in favor of the defendants. From a take nothing judgment, Sherman Irwin has appealed only as to the Corporation.
Appellant contends that on or about July, 1959, his brother, Lofflin Irwin, who was acting as an officer of the Corporation, entered into an oral agreement with him to serve as plant manager and general supervisor of the plant operations for the Corporation. He contends that by the terms of the agreement he was to accept a reduced salary of $600 per month. In addition to the monthly salary, he contends that he was to receive shares of stock in the Corporation, 'which shares were to be under the above referred to agreement of as equivalent value of twelve and one-half per cent (12 1/2%) of the total assets owned by the Corporation'.
All the defendants except appellant's brother, Lofflin Irwin, contended that no such employment contract existed. The Corporation pleaded that such employment contract was never discussed, approved or adopted by the Board of Directors.
The court rendered a summary judgment for the defendants in the first trial, which was reversed and remanded, 442 S.W.2d 406 (writ ref. n.r.e. 1969), holding that issues of fact existed as to whether appellees were estopped to plead limitations.
Appellant pleaded that his employment contract was made on or about July, 1959. In answer to Special Issue No. 1, the jury found that Lofflin Irwin represented to the appellant in July 1959, that if appellant would go to work for the Corporation he would receive in addition to his salary twelve and one-half per cent (12 1/2%) of the stock in the Corporation. In answer to Special Issue No. 4, the jury found that under the employment agreement appellant did have the right to receive such stock within the period of one year from the date of the employment agreement. Appellant's cause of action for the stock accrued in July, 1960, and his original petition shows to have been filed April 7, 1967. We hold that appellant's cause of action was barred by the statute of limitations.
The appellant pleaded that appellees were estopped from pleading limitations. In Irwin v. Prestressed Structures, Inc., Tex.Civ.App., 442 S.W.2d 406 (writ ref. n.r.e.) in the first reported opinion of this case, the court said:
Special Issues No. 12 and No. 13 and the jury's answers thereto are as follows:
'SPECIAL ISSUE NO. 12
Do you find from a preponderance of the evidence that Plaintiff, Sherman Irwin, under the circumstances then and there existing, did not fail to use reasonable and due care and diligence in determining that Defendants, Ralph Cocanougher and J. B. White, were not willing to issue to him, 12 1/2% Of the total stock of Prestressed Structures, Inc., pursuant to the oral representation inquired about in Special Issue No. 1?
SPECIAL ISSUE NO. 13
Do you find from a preponderance of the evidence that Sherman Irwin discussed with J. B. White or Ralph Cocanougher the issuance of stock in the corporation to Sherman Irwin prior to December 1966?
We find no merit in appellant's contentions that there is no evidence to support the answer to Issue #12, and that it is an immaterial issue and that it is in conflict with Issue #9. Appellant had the burden of establishing estoppel against appellee from asserting the statute of limitations. It was incumbent upon him to secure a favorable finding on this issue. The record does not support appellant's position that the evidence conclusively establishes that 'he did not fail to use reasonable diligence'.
The jury found in answer to Issue #9 that appellant in good faith believed at all times up until 1966 that he was to receive corporate stock in the corporation. He contends this answer is in fatal conflict with the answer to Issue #12 quoted...
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