Irwin v. Prestressed Structures, Inc.
| Decision Date | 05 May 1969 |
| Docket Number | No. 7920,7920 |
| Parties | Sherman IRWIN, Appellant, v. PRESTRESSED STRUCTURES, INC., et al., Appellees. . Amarillo |
| Court | Texas Court of Appeals |
Vickers, Garner & Walters, Lubbock, for appellant; James A. Walters, Lubbock, of counsel.
Jim Kimmel, Lubbock, for appellees; Evans, Pharr, Trout & Jones, Wm. H. Evans, Lubbock, of counsel.
Summary judgment for defendants appealed by plaintiff.
Plaintiff brought suit against Prestressed Structures and its officers and shareholders, J. B. White, President and Director, Ralph Cocanougher, Vice President and Director, Lofflin Irwin, former Secretary-Treasurer and Director and John A. (Jack) Flygare as agent-trustee for an undisclosed purchaser of stock in Prestressed, contending that in July, 1958, Lofflin Irwin, a brother of plaintiff, hired him as plant superintendent at a salary of $600.00 per month and further agreed to give him 12 1/2% Of the stock of Prestressed as a part of the oral employment agreement. Plaintiff contends the $600.00 monthly salary was a 'reduced' salary for the job or position. Plaintiff made demand on the defendants for the issuance of the stock the latter part of 1966, some seven years after the alleged employment agreement. Plaintiff testified by affidavit and deposition that no certain time for issuance of the claimed stock was agreed upon, and further that he had no discussion regarding the claimed stock with anyone in the company prior to December, 1966, except his brother, Lofflin Irwin. Plaintiff in his pleadings alleged that the officer--defendants all occupied a place of trust and confidence to plaintiff; that plaintiff was led to believe that he would receive his stock by the actions of the officer--defendants through their having introduced him to various persons, customers and the general public at large as an 'owner' of the business on various occasions. White, Cocanougher and Flygare as agent--trustees filed motions for summary judgment and, upon hearing had, the motions were granted by the trial court. Lofflin Irwin, defendant--brother of the appellant, was dismissed without prejudice prior to presentation in this court.
In this matter we are required to accept as true all evidence tending to support the appellant's contentions, along with the indulgence of every reasonable inference to be drawn in appellant's favor. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). We think the record presents material fact issues that should be resolved upon a trial on the merits.
Appellant's affidavit points out that he accepted the job at a salary less than that which the responsibility of the position called for upon the promise that he would also be issued 12 1/2% Of the total stock of the corporation. This agreement was made with appellant's brother, Lofflin Irwin, who at that time was secretary-treasurer and one of a total of three stockholders of the company. Lofflin Irwin also by affidavit contended that the other officers and directors were notified by him of the agreement with appellant shortly after the agreement was entered into, and further that they agreed to the terms of the hiring. Further, there is evidence to the effect that the officers and directors treated appellant as an owner of the business, consulting with him on major business decisions and introducing him to others as being an owner of the business.
Appellees contend that Art. 2.15 of the Texas Business Corporation Act, V.A.T.S. requires that...
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...v. Dozier, 162 Tex. 319, 346 S.W.2d 795 (1961); Eisenbeck v. Buttgen, 450 S. W.2d 696 (Tex.Civ.App.1970); Irwin v. Prestressed Structures, Inc., 442 S.W.2d 406 (Tex.Civ.App.1969), error ref. n.r.e.; Sapphire Royalty Co. v. Davenport, 306 S.W.2d 202 (Tex.Civ.App.1957) error ref. n.r.e. This ......
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...County Peanut Growers Ass'n, 268 S.W.2d 761 (Tex.Civ.App.-Austin 1954, no writ); see also Irwin v. Prestressed Structures, Inc., 442 S.W.2d 406 (Tex.Civ.App.-Amarillo 1969, writ ref'd n.r.e.) (holding, after trial, that estoppel was not proved); Rauch v. Hearne, 189 S.W.2d 342 (Tex.Civ.App.......
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Long Trusts v. Griffin, No. 06-02-00185-CV (TX 8/18/2004)
...County Peanut Growers Ass'n, 268 S.W.2d 761 (Tex. Civ. App.—Austin 1954, no writ); see also Irwin v. Prestressed Structures, Inc., 442 S.W.2d 406 (Tex. Civ. App.—Amarillo 1969, writ ref'd n.r.e.) (holding, after trial, that estoppel was not proved); Rauch v. Hearne, 189 S.W.2d 342 (Tex. Civ......
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...running of the statute or else he cannot overcome the properly asserted defense of limitations. Irwin v. Prestressed Structures, Inc., 442 S.W.2d 406 (Tex.Civ.App.1969, writ ref'd n.r.e.). Under Hilland, supra, and its progeny, however, diligence is not the issue. The cause of action is ass......