Lewis v. Hillsboro Roller-Mill Co.
| Decision Date | 05 September 1893 |
| Citation | 23 S.W. 338 |
| Parties | LEWIS v. HILLSBORO ROLLER-MILL CO. |
| Court | Texas Court of Appeals |
Appeal from Hill county court; J. G. Abney, Judge.
Action by the Hillsboro Roller-Mill Company against M. Lewis on a subscription made by defendant for the purpose of erecting a roller mill in the city of Hillsboro. From a judgment for plaintiff, defendant appeals. Reversed.
Upshaw & Jordan, for appellant. Tarlton & Morrow and McKinnon & Carlton, for appellee.
This suit was brought by appellee against appellant to recover $500, alleged to be due by appellant on a subscription for the purpose of erecting a roller mill in the city of Hillsboro. Appellant (defendant below) admitted that he signed the subscription list, but said that, before the amount ($20,000) necessary to be raised had been subscribed, he notified J. R. Thompson, who had the subscription in charge, that he would withdraw his subscription, to which Thompson consented. Thompson referred him to his bookkeeper, where defendant went, and erased his name from a list handed him by said bookkeeper, which he supposed was the original subscription list, but which was in fact a copy. At that time no expenses had been incurred, nor had there been an organization of the corporation. The judge who tried the case is a brother-in-law of J. R. Thompson, who is a stockholder in, and president of, the appellee company.
The first error assigned by appellant is, in substance, that the presiding judge was disqualified to try the case because of his relation to J. R. Thompson, a stockholder. A judge is disqualified on account of relationship only when a relative "within the third degree" is a party to the suit. Rev. St. art. 1138. When a corporation sues or is sued, a stockholder is in no sense a party to the suit. We therefore conclude that this assignment is not well taken. Coal Co. v. Carter, 3 Civil Cas. Ct. App. 306; In re Dodge & Stevenson Manuf'g Co., 77 N. Y. 101.
The next assignment that requires consideration is that the court erred in holding that the defendant could not withdraw his subscription after having signed the subscription list. In the case of Williams v. Rogan, 59 Tex. 438, where the party signed a subscription to erect a building for a high school at the instance of the Methodist Church, the court held that "until the acceptance by the church of the subscription, or the beginning of work on the building, the subscriber may withdraw his promise to pay the amount...
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...Herring, Nat. Bank, Tex.Civ.App., 153 S.W. 394; Houston Cemetery Co. v. Drew, 13 Tex.Civ.App., 536, 36 S.W. 802; Lewis v. Hillsboro Roller-Mill Co., Tex.Civ.App., 23 S.W. 338. The relative's interest is indirect though an attorney will receive a contingent fee, Winston v. Masterson, 87 Tex.......
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