Loessin & Herndon, Inc. v. Coffield Lumber Co.
| Citation | 280 S.W.2d 796 |
| Decision Date | 16 June 1955 |
| Docket Number | No. 12860,12860 |
| Parties | LOESSIN & HERNDON, Inc., Appellant, v. COFFIELD LUMBER COMPANY, Inc., et al., Appellees. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Dillingham, Warner & Schleider, L. L. Warner, and Ollie D. Brown, Jr., of Houston, for appellant.
Jack W. Prescott, Cameron, for appellee.
This is a suit for the purchase price of nine shipments of lumber sold and shipped to Coffield Lumber Company, Inc., at Rockdale, Texas, between April 13, 1954, and July 1, 1954, by Loessin & Herndon, Inc., of Houston, Texas. Loessin & Herndon, Inc., brought this suit in the District Court of Harris County, Texas, against Coffield Lumber Company, Inc., as a dissolved corporation and in that connection sued H. H. Coffield, Marjorie Coffield and C. H. Coffield, as the statutory trustees of the dissolved corporation upon a sworn account, as provided by Rule 185, Texas Rules of Civil Procedure. The said statutory trustees owned all the stock, had all the interest in and were all the officers of the dissolved corporation. Coffield Lumber Company, Inc. and each of the aforesaid statutory trustees filed their pleas of privilege asserting the right to be sued in Milam County.
The plaintiff, Loessin & Herndon, Inc., seasonably filed its controverting affidavit and undertook to sustain jurisdiction in Harris County, under the provisions of subdivision 23, Art. 1995, V. A.T.S. on the ground that the cause of action, or a part thereof arose in the County of Harris. The pleas of privilege were submitted to the District Court of Harris County, 127th Judicial District, upon an agreed stipulation of facts hereafter set out. The trial court sustained the pleas of privilege and ordered the case transferred to the District Court of Milam County, from which order plaintiff, which will hereafter be called appellant, is prosecuting this appeal, and has predicated same upon a single point of error to the effect that the court erred in sustaining appellee's plea of privilege as to appellee, Coffield Lumber Company, Inc., in that the evidence conclusively established that the cause of action of appellant, or a part thereof, arose in the County of suit and venue was therefore proper under subdivision 23, Art. 1995, V. A.T.S. We sustain said point.
The stipulation upon which the case was submitted reads as follows:
'It is agreed by and between the parties hereto that the facts upon which the plea of privilege and the controverting affidavit filed herein are based, and upon which the same shall be submitted to the District Court of Harris County, Texas, for determination upon the law are as follows:
'Loessin & Herndon, Inc., a Texas Corporation, with its principal offices at 843 First National Bank Building, Houston, Harris County, Texas, are brokers of lumber and forest products.. In the operation of their business Loessin & Herndon have, since sometime in 1951, made numerous sales of lumber to the Coffield Lumber Company, Inc., of Rockdale, Texas, defendant in the above-entitled and numbered cause.
'The sales made to Coffield Lumber Company, Inc., and all sales made by Loessin & Herndon, Inc., were made in the following manner: Throughout the territory in which they operate, Loessin & Herndon, Inc., have certain persons who call upon the lumber retailers within their respective area and solicit orders for lumber. These solicitors are paid no salary by Loessin & Herndon, Inc., their only compensation being a commission on the sales made by each one individually. They are not under the control and supervison of Loessin & Herndon, Inc., in the conduct and operation of their business of calling on lumber yards, etc., and soliciting orders for lumber or forest products. Upon receivin an order ofr lumber, the solicitor transmits, either by mail or telephone, the order to Loessin & Herndon, Inc., in Houston, Harris County, Texas. Upon receipt of the order in Houston, Loessin & Herndon, Inc. contact, either by telephone or wire, one or more lumber mills throughout the country to determine (1) whether the lumber can be obtained in the quantity, quality and sizes ordered and (2) where the lumber can be obtained in the quantity, quality and sizes ordered. Upon determining that the lumber can be obtained in the quantity, quality and sizes to fill the order, Loessin & Herndon, Inc. notify the lumber mill to ship the lumber so ordered to the lumber yard which submitted the order. Simultaneously with transmittal of the shipping order to the lumber mill, Loessin & Herndon, Inc. forward to the particular lumber yard their acceptance of the order for the quantity, quality and size of lumber ordered. All orders recived by Loessin & Herndon, Inc., in their home office at Houston, Harris County Texas, are accepted or rejected at the authority of the President and/or Vice-President of the corportion after ascertaining that such order or orders can or cannot be filled as written. the solicitors in the field have no authority to make any contract on behalf of Loessin & Herndon, Inc. The shipments of lumber made the basis of the above entitled and numbered cause were handled in the manner just described, which is the customary manner of operation with lumber brokers and the lumber industry as a whole.
'Payment for the lumber or forest products shipped to the particular lumber yard is made in all cases at the home office of Loessin & Herndon, Inc. in Houston, Harris County, Texas.
Attorney for Defendant
/s/ Ollie D. Brown, Jr.
Attorney for Plaintiff.'
The stipulation of facts above set forth did not, we believe, supersede the pleadings in the case. Indeed, the stipulation expressly provides 'The shipments of lumber made the basis of the above entitled and numbered cause were handled in the manner just described, which is the customary manner of operation with lumber brokers and the lumber industry as a whole.'
In an exhibit duly verified as a sworn account the 'shipments of lumber made the basis of this suit' are duly set out and identified, the first such shipment being under date of April 13, 1954, and the last one being under date of July 1, 1954. Thus, the stipulation was broad enough to establish that the corporation-defendant was dissolved after the date of the last shipment. Furthermore, the statutory trustees did not deny by verified plea that the corporation-defendant, and that they, themselves, as statutory trustees, were not liable in the capacity in which they were respectively sued. See Sections (c) and (g), Rule 93, T.R.C.P.
By force of Art. 1388, V. A.T.S., when a corporation is dissolved its president and directors become the statutory trustees for the creditors and stockholders of the dissolved corporation. By force of Art. 1389, V. A.T.S. the existence of a corporation may be continued for three years after its dissolution, from...
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