National Equitable Society of Belton v. Tennison

• Decision Date: 13 March 1915
• Docket Number: (No. 743.)
• Citation: 174 S.W. 978
• Parties: NATIONAL EQUITABLE SOCIETY OF BELTON v. TENNISON.
• Court: Texas Court of Appeals

174 S.W. 978

NATIONAL EQUITABLE SOCIETY OF BELTON v. TENNISON.

(No. 743.)

Court of Civil Appeals of Texas. Amarillo.

March 13, 1915.

Appeal from District Court, Hemphill County; F. P. Greever, Judge.

Action by C. L. Tennison against the National Equitable Society of Belton. Judgment for plaintiff, and defendant appeals. Affirmed.

B. M. Baker, of Canadian, for appellant. H. E. Hoover, of Canadian, for appellee.

HUFF, C. J.

This was an action instituted by appellee, Tennison, against the appellant, the National Equitable Society of Belton, Tex., to recover the sum of $385, with interest, alleged to have been paid by Tennison to the appellant upon a contract, providing that on receipt of the $385 appellant would, within 90 days, lend Tennison $3,500 on approved real estate security. Tennison alleged the payment of $385, the tender of the real estate security, and the failure and refusal on the part of appellant to make the loan of the $3,500, and prayed for judgment, etc.

Tennison further alleged in his petition that the defendant called upon the plaintiff in Canadian, Hemphill county, Tex., for the purpose of inducing the appellee to take out a contract with appellant, and stated to appellee that, if he would take out a contract for $3,500, and would pay the advance assessment of $385, the society would at Canadian, in Hemphill county, Tex., on or before 90 days from the date of the contract, loan the appellee, upon real estate security, the sum of $3,500, at 5 per cent.; that the agent, Logue, wrote a letter to the appellant and asked the appellant to write to the appellee for the purpose of inducing the appellee to enter into the contract, and tell appellee that, if he would take out the contract and pay $385, the company would within 90 days loan the appellee the sum of $3,500; that appellant replied to this letter through its president, and stated that the company would make the loan within 90 days if the appellee would take out the contract; that under this agreement which the appellee relied upon, he was induced to, and did, take out the contract and pay over the $385; that appellee did in all things comply with the contract and agreement, and that appellant refused to make the loan; that appellant never intended to carry out the terms of its contract, and that it perpetrated a fraud upon the appellee, and thus procured his money. The petition charges that the appellee repeatedly called upon the appellant to comply with the terms of said contract; that appellant has refused to do so; that appellant has no means or intention of complying with the contract; that he, appellee, repeatedly offered to return the contract; and that the appellant has refused to receive the same or comply with its agreement. The petition makes a tender of the contract in court, and asks that the same be canceled, and that he have judgment for $385.

The appellant answered that the conditions upon which it was bound under the contract with Tennison to make him the loan were that before Tennison could demand the loan he should file with the society an abstract of title to the real estate offered to secure the loan; the adequacy of security and the title to the real estate to be determined by the society or by its executive committee, and not then until the society had money sufficient in amount for the purpose of its reserve loan fund unincumbered with prior claims upon it. The society pleaded, further, that no such security or abstract of title had ever been offered or tendered it by Tennison, and that its executive committee had never been given the opportunity to examine the abstract to ascertain the validity of the title nor the real estate to determine its value; and, further, that at no time has the society had sufficient money in its reserve loan fund unincumbered with prior demands upon it to enable it to make the loan to Tennison demanded by him. Appellant therefore insisted it had not breached the contract made with Tennison, or that Tennison had not tendered the real estate security provided for by the contract, nor given the society an opportunity to pass on the question of the sufficiency of the security nor the validity of the title, and that it was not liable to Tennison on the contract, for the additional reason that it had no money unincumbered in its reserve loan fund with which to make the loan.

The case was tried before the court without a jury, and the trial court files findings of facts at the request of the appellant. We adopt the findings of fact made by the trial court, and for the purpose of this opinion we state that the evidence is sufficient to show the contract made and entered into as alleged by the appellee, and that the appellant refused to make the loan in accordance with its agreement with him, and notified him that it did not have the money, and could not loan the money. The facts in this case are furthermore sufficient to show that the contract entered into with Tennison was one not usually made by the company, but, in order to secure a contract with him, entered into a special contract as set out in plaintiff's petition, and they have failed and refused to comply with the contract and the terms of their special agreement, as alleged by him.

Appellant in the court below sought to quash the citation on several grounds, which the court overruled.

The first assignment of error is that the court erred in refusing to sustain appellant's second ground to quash the citation because the citation was not directed to be served as prayed for in the petition; the petition praying that citation be served on E. C. Clabough, as the president of the defendant corporation, and the citation directing service on the defendant in its corporate name. The petition in this case alleges that C. L. Tennison, thereinafter styled plaintiff, complaining of the National Equitable Society of Belton, Tex., alleges that defendant is a corporation; "that E. C. Clabough is the president of said corporation or incorporated association, and that service of process can be had on him in the town of Belton, in the county of Bell, state of Texas;" and the prayer is "that the defendant be cited as the law directs." The residence of appellee was alleged to be in Hemphill county, and the suit was instituted in the district court of that county, and the domicile of appellant alleged to be in Bell county, Tex. The citation was directed to the sheriff, etc., of Bell county, commanding him to summons "National Equitable Society of Belton, Tex." The return thereon shows that appellant, National Equitable Society of Belton was served by the delivery of a copy of the citation, together with the accompanying certified copy of the petition, to E. C. Clabough, president.

In suits against a corporation, the citation may be served on the president. Article 1860, Vernon's Sayles' Civil Statutes. The petition in this case shows that it is a suit against appellant corporation, and prays that citation be issued as required by law. The allegation in the petition that service could be had upon its president, E. C. Clabough, was proper. While it was not necessary to so allege, it has been held to be proper to state in the petition upon whom service could be had. When the petition and citation so state, judgment can be taken by default without proof that the person named is the agent of the corporation. If not stated, there must be proof that the person served is the proper person. El Paso, etc., v. Kelly, 83 S. W. 855, 858, and authorities cited.

The above case was reversed by the Supreme Court on another ground, but expressly sustained in the holding as to the citation. 99 Tex. 87, 87 S. W. 660; Railway Co. v. Gage, 63 Tex. 568; Liverpool, etc., v. McCollum, 149 S. W. 775, 777.

The second assignment of error presents error on the part of the court on the ground that he should have sustained the motion to quash the citation for the reason that the citation failed altogether in stating the nature of plaintiff's demand against defendant. The appellant presents as propositions: First, that the law requires the statements in the citation to be sufficient to inform the defendant of the demand against him; and, second, when the nature of the demand is not sufficiently stated, the citation is not aided by the advice contained in it that for a more particular description see plaintiff's original petition accompanying this writ; the citation referring to the petition not constituting any part of the citation. The citation recites:

"The nature of the plaintiff's demand is as follows, to wit: Suit to recover against defendant the sum of $385, together with interest from August 25, 1913. For a more particular description of plaintiff's cause of action and relief prayed for, see certified copy of plaintiff's original petition accompanying this writ."

The citation further directed the sheriff to:

"Deliver to said defendant, National Equitable Society of Belton, each in person, a true copy of this citation, together with the accompanying certified copy of plaintiff's petition."

The statement of the demand is not at variance with the demand set out in the...