Mann Commission Co. v. Ball

• Decision Date: 09 January 1932
• Docket Number: No. 12585.,12585.
• Parties: MANN COMMISSION CO. v. BALL.
• Court: Texas Court of Appeals

48 S.W.2d 780

MANN COMMISSION CO. v. BALL.

No. 12585.

Court of Civil Appeals of Texas. Fort Worth.

January 9, 1932.

Rehearing Denied February 6, 1932.

Appeal from District Court, Cooke County; B. W. Boyd, Judge.

Action by the Mann Commission Company against Elbridge Ball. Judgment for defendant, and plaintiff appeals.

Reversed and remanded, with directions.

W. H. Lipscomb, of San Angelo, Culp & Culp, of Gainesville, and L. J. Wardlaw, of Fort Worth, for appellant.

Slay & Simon and Richard Simon, all of Fort Worth, and Murphy & Murphy, of Gainesville, for appellee.

BUCK, J.

In its original petition the Mann Commission Company, styled a private corporation, sued Elbridge Ball, of Cooke county, for commission for the sale of a ranch of 19,158 acres in San Saba county, which the plaintiff alleged defendant had listed with it at a price of $13 an acre, payable one-fourth in cash and the balance on terms to suit the purchaser, and appellee agreed to pay 5 per cent. commission should a sale be made of said land.

Plaintiff alleged that on or about October 1, 1927, at great expense, effort, and trouble, it carried a purchaser for said ranch from San Angelo, Tex., to San Saba county, and showed said property to said prospective purchaser; that on another occasion plaintiff showed said property to a prospective purchaser, and on both of said occasions the defendant herein was present, and this plaintiff, acting through J. Walter Mann, told defendant that the Mann Commission Company had procured a prospective purchaser, to wit, L. P. Powell, of Big Lake, Tex., and said Powell had promised to go to San Saba county and look at said land, and he believed that Powell would purchase the same. Plaintiff further represented that on several occasions from December 1, 1927, up to and including May 12, 1928, plaintiff had written letters to defendant advising him that L. P. Powell was interested in the purchase of said ranch, and within the near future thought the trade would be closed with him. Plaintiff alleged that on May 12, 1928, he sold said property to Powell for a total consideration of $244,268.31. Plaintiff further alleged that, by reason of defendant listing said property with plaintiff, and by reason of its efforts in showing said property to L. P. Powell, it was the procuring cause in the sale of said land, and had earned the commission of $12,213.41. This petition was filed May 17, 1928.

On May 16, 1929, plaintiff filed its first amended petition, in which plaintiff alleged that it was a corporation. On January 19, 1931, plaintiff filed its second amended original petition, in which it alleged for the first time that, at the time of listing the ranch, plaintiff was a copartnership, consisting of Clay Mann and J. Walter Mann, then doing a commission and brokerage business in San Angelo, Tex.; that, after said lands had been listed for sale by defendant with said copartnership, said partnership, consisting of Clay Mann, J. Walter Mann, and their brother Arthur Mann, mutually agreed to create a corporation, under the name of Mann Commission Company, with a capital stock of $10,000, which stock was to be subscribed and paid for, in full, by the partners, and it was then and there mutually agreed by and between the three Manns that all properties, as well as all commissions, then owned by said copartnership, or which might thereafter accrue or become due, under or by virtue of existing listing contracts or agreement with said copartnership, should, upon such accrual, be considered as, and become the property of, said corporation; and it was further agreed by and among all of said Manns that said partnership should make all reasonable efforts to sell the properties which had been listed with it, and thereby earn such commissions as had been agreed upon by said copartnership; that thereafter, and during the latter part of January or the early part of February, 1928, and at a time when said copartnership was discussing and negotiating with the said L. P. Powell for the purchase by the latter of said lands, and when the latter had agreed with said copartnership to make an inspection thereof, defendant telegraphed said commission company that said ranch and the lands of which it consisted was not for sale, at which time the plaintiff alleges said lands were for sale, and defendant then intended to sell said lands to said L. P. Powell, if it was possible for him to do so, which intention was perfected on or about May 12, 1928, for the consideration of $249,109.50.

Plaintiff prayed that it have judgment against defendant for the sum of $12,455.47, with interest at the rate of 6 per cent. per annum from and after May 12, 1928.

Defendant filed his second amended answer January 19, 1931, in which he denied that plaintiff is a corporation, duly incorporated as alleged in its first amended petition. Defendant represented that plaintiff's right to do business as a corporation in the state of Texas has been forfeited, so that it no longer has the privilege or right to use the Texas courts either to prosecute or defend an action at law. This part of defendant's answer was sworn to by Richard U. Simon, attorney for defendant.

Defendant excepted to paragraph 1 of plaintiff's second amended petition, wherein he alleged that plaintiff was incorporated to engage in the general brokerage and commission business, consisting of buying and selling lands, properties, and live stock for others, for the reason that the statutes and laws of Texas do not authorize or permit a corporation to engage in the business of buying and selling lands and live stock.

Defendant's second amended answer was quite comprehensive, and consisted of some 11 pages of pleadings. It contained a prayer to make E. E. Fagg, who was alleged to be the procuring cause of the sale, a party defendant, and, in case judgment should be against defendant, that defendant have judgment over against said Fagg for any amount adjudged against the defendant.

The cause was tried before the court without the intervention of a jury, and the court overruled defendant's plea in abatement, as set out in paragraph 1 of defendant's second amended answer. The judgment in overruling said plea in abatement used the following language: "That as to the defendant's plea in abatement as set out in paragraph 1 of the defendant's second amended answer, which denied that the plaintiff was a corporation duly incorporated under the laws of Texas, but on the contrary that the plaintiff's right to do business had been forfeited for failure to pay the franchise tax; and the undisputed evidence with reference to such plea in abatement being that, due to the failure of the plaintiff to pay its franchise tax, its right to do business in Texas was properly forfeited by the Secretary of State of the State of Texas on July 12, 1929, but that this suit was originally filed on the date shown by the clerk's file mark on the original petition herein, the law is with the plaintiff, and the defendant's plea in abatement should be and the same is hereby overruled, to which action of the court the defendant excepted."

The judgment also overruled defendant's exception, as stated in paragraph 9 of defendant's second amended answer, which alleged that the contract theretofore alleged to be existing between the defendant and the copartnership was a personal contract relating to the sale of lands, and called for personal service to be rendered, and was wholly incapable of being assigned or in any way transferred to any one else without the acquiescence of the defendant. The court also overruled special exception set out in paragraph 3 of defendant's second amended answer, which alleged that plaintiff's business as a corporation had been wholly illegal and void, because there is no authorization under the Texas statutes for a corporation to engage in a general brokerage and commission business, consisting, among other things, of buying and selling lands, and other properties and live stock for others. The court sustained a special exception set out in paragraph 18 of defendant's amended answer, which said, as set out in the petition: "Because it is clearly shown on the face of the petition that any cause of action which arose as against the defendant arose on May 12, 1928, at the very latest date, because more than two years have elapsed since said date and before this second amended petition was filed, and because this second amended petition is an entirely new cause of action from that set out in any prior pleadings by the plaintiff, and because this action as set out in the plaintiff's second amended petition is barred by the Statute of Limitations of the State of Texas, which requires any action not on written contract or otherwise expressly excepted, to be brought within two years from the accrual thereof."

The court held that this exception was sustained. From a judgment sustaining defendant's plea of limitation, the plaintiff has appealed to this court.

There is no statement of facts in the record, and the defendant below relies on the pleadings to sustain its exception and assignments.

Opinion.

Appellant urges that the trial court erred in sustaining the plea of limitation, and that, where the prior petition, filed before the bar of the statute has become complete, contains any allegation of fact, relied upon in the pleadings filed after the bar has become complete, essential to plaintiff's recovery under the amended pleading, it cannot be said that the latter sets up any new cause of action.

Both appellant and appellee cite the case of Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S. W. 707, 709, by Judge Brown of the Supreme Court. In that case the opinion states that it is very difficult to give any general definition of the phrase "cause of action" which would apply to all cases alike, and few courts have attempted to do so. Judge Brown sets out the tests laid down by which to...