A. Leschen & Sons Rope Co. v. Moser

• Decision Date: 28 June 1913
• Citation: 159 S.W. 1018
• Parties: A. LESCHEN & SONS ROPE CO. v. MOSER et al.
• Court: Texas Court of Appeals

159 S.W. 1018

A. LESCHEN & SONS ROPE CO. v. MOSER et al.

Court of Civil Appeals of Texas. San Antonio.

June 28, 1913.

On Motion for Rehearing, October 22, 1913.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by A. Leschen & Sons Rope Company against Carlos Moser and others in which other defendants were impleaded. From a judgment against the named defendant and in favor of the others, plaintiff appeals. Affirmed in part, and in part reversed and remanded.

There being many parties to this suit, and the pleadings voluminous, we will not undertake to state the same in detail but will adopt the statement of the case made in the brief of appellees, because it is much shorter than that made by appellant and equally as correct.

"This suit was brought by appellant, a foreign corporation, without a permit to do business in Texas, to recover on a written contract for material and labor with one Carlos Moser and for the value of additional material furnished and labor performed by it for said Moser after the execution of said contract. The Del Carmen Mining Company, an Arizona corporation, was alleged by appellant to be liable on the contract and for the additional material and labor on the ground that the latter corporation had assumed the payment of said contract and for said additional material and labor. Appellant made certain stockholders of the mining company parties defendant, alleging substantially that the Del Carmen Mining Company, not having taken out a permit to do business in Texas, was a partnership, and that the said stockholders were partners and liable as such by reason of the assumption of the said mining company of the indebtedness of Moser sued for by appellant. The original individual defendants made a number of other stockholders parties defendant averring that, if the Del Carmen Mining Company was a partnership and any of the stockholders liable, all should be held liable and each made to contribute to the payment of any judgment appellant might recover. Appellant further claimed a contractor's and materialman's lien on an aërial tramway erected under the contract sued upon on land owned by defendant Kincaid and upon said land. After the evidence was all in, the court instructed the jury to render a verdict for all of the defendants, except the defendant Moser. The verdict was so rendered, and upon it the judgment appealed from entered."

Summary of Evidence.

On November 4, 1907, Carlos Moser entered into a written contract with A. Leschen & Sons Rope Company, a corporation duly incorporated under the laws of Missouri, having no permit to do business in Texas, whereby, for $24,720, to be paid by said Moser one-third on November 1, 1907, one-third on January 15, 1908, and the remainder 14 days after tramway is in operation and not later than June 1, 1908, said corporation bound itself to furnish f. o. b. cars at St. Louis the machinery and wire rope for a tramway having an incline length of 28,790 feet, with a fall of 540 feet in that distance, to be erected across the Rio Grande river at a point about 90 miles from Marathon, Tex.; the same to be used for carrying zinc ores from a mine in Mexico to the point in Texas above mentioned. Afterwards some changes were made and at various times extras were sold to Moser f. o. b. cars at St. Louis, resulting in an increase of his indebtedness to the extent of $9,327.44, of which only $40.60 was paid by Moser. The contract contained the following clause: "To facilitate the erection and make proper adjustment in the machinery, we can furnish you with a thoroughly competent superintendent for eight dollars ($8.00) per day and hotel and traveling expenses, payable in United States currency, time and expenses to be charged from date of leaving St. Louis and until his return to St. Louis; such charges and expenses to be paid us at the end of each week." Also the following: "The title to and ownership of the above-described tramway machinery to remain in the A. Leschen & Sons Rope Company until the same is wholly paid for. Furthermore the A. Leschen & Sons Rope Company are hereby given free and undisputed rights to enter upon the premises for the purpose of retaining such possession, or for removing said tramway material in default of the last payment being made."

The contract was filed on June 8, 1910, and afterwards recorded in the Mechanics' Lien Records of Brewster county, Tex. On May 18, 1910, sworn account showing items of extras furnished, prices thereof, and balance due thereon was filed in said county. The date of the last item of material furnished is December 1, 1909. The only items charged up subsequent to said date are for services and expense of tramway superintendent; the last thereof bearing date March 11, 1910. Leschen testified that the services of Graham were payable monthly, and that the contract so provided, and that the prices in the invoices for material furnished additional to that called for in the contract were charged "as in open accounts." Said account was sworn to on May 14, 1910, and while it states that the affiant is informed that the cable is owned by Del Carmen Mining Company, and that notice of the account due was sent to said company as provided by article 3296, Revised Statutes, no claim is asserted in said account that the Del Carmen Mining Company assumed the account or contracted the same through Moser as agent. T. H. Graham was sent by plaintiff company to superintend the erection of the tramway. He had full charge of the erection of the same, employed and discharged those working under him, but they were paid by Moser. Graham's services were charged up against Moser by the plaintiff company according to the terms of the contract.

On October 26, 1908, the Del Carmen Mining Company filed articles of incorporation under the laws of Arizona; the incorporators being John Marbach, Henry Streuer, E. L. Swazey, and Charles Moser, all residents of Texas. The provisions of said charter necessary to be mentioned being as follows: An office was required to be kept at Phoenix, Ariz., but other offices and places of business might be kept at Boquillas, Mexico, and at San Antonio, Tex., at which incorporators', stockholders', and directors' meetings might be held and corporate business transacted; the capital stock was fixed at $2,000,000, divided into 20,000 shares, to be paid up at date of issuance or at such time as the board of directors might designate in money, property, labor, or any other valuable right or thing; the nature of the business to be engaged in was: Mining in all its branches, assaying, milling, smelting, and the transportation and sale of ore; owning all necessary appliances, tools, machinery, buildings, etc.; owning, operating, buying, and selling all classes of real estate, personal property, easements, franchises, rights of way, patent rights, mining properties and rights, water rights, mill rights, telephone, telegraph, traction engines and roads, railroads, concessions, ferries, merchandising, and all other things necessary to the carrying on of a general mining business, as the purchase and sale of ores and metals; also making contracts with the United States and foreign governments; engaging in any and all kinds of business that a natural person might or could in the United States or any part of the world." The capital stock was made non-assessable. On December 7, 1908, 19,995 shares of the stock were issued to Carlos Moser. This was in accordance with an agreement made at the initial meeting of the incorporators, by the terms whereof he was to receive such stock and $97.50 cash for the properties which he agreed to convey. The stock subscription, dated October 27, 1908, shows that one share was agreed to be taken by each of the other incorporators and one share by Earl D. Scott, each agreeing to pay $32.50 for his share. December 11, 1908, Moser sold and transferred 206 shares and received a new certificate for 19,789 shares. Twenty-one of his shares were transferred to Richard Pfeuffer, 60 to John Marbach, and 125 to Henry Streuer. Moser and wife on March 10, 1909, conveyed to Del Carmen Mining Company, for the recited consideration of 19,789 shares of the stock of said company, various mines in Mexico owned by Moser, as well as his leasehold rights in others, also all contracts for the sale of ore, improvements, tools, implements, all ore on patio or in transportation, all tramways and rights of way therefor, all cables, all stores, all engineers' reports for projected railway, including "all interest and rights of any and all property on the American side of the Rio Grande river between said described mines and Marathon, Tex., and all assets and real and personal property of every kind and character whatever appurtenant to said mines and properties." Said properties being conveyed subject to a debt to the Mexican Ore Purchasing Company of New York amounting to $116,870.95, payable on or before September 1, 1910, bearing 7 per cent. interest. Moser entered into a contract with W. M. Abbey whereby Abbey was to sell a portion of Moser's stock, in which contract Moser made certain statements, representations, and agreements to be used by Abbey in making sales, among others that the Del Carmen Mining Company was the owner of the properties described in the conveyance by him and his wife to said company. It was also provided that Abbey should have a certain time to investigate the papers furnished by Moser, and if satisfied should pay $40,000 to the credit of Moser in the Alamo National Bank, for which 3,000 shares of the capital stock of the Del Carmen Mining Company should be transferred to him by Moser, and the $40,000 so deposited should be used for the following purposes: "(1) The full payment of A. Leschen & Sons Rope Company of the purchase price of the wire cable purchased from them for said properties, amounting to about $17,000. (2) To the payment of $3,000 due L....