WALKER, J.
We take the following statement of the nature and result of this suit from the brief of appellant:
"This suit was brought by the appellee, Cravens-Cage Company against the appellant and others by petition filed on the 21st day of January, 1921, in which the appellee, Cravens-Cage Company, sought recovery upon seven notes in the sum of $200 each, due monthly, executed by L. F. Nini and secured by chattel mortgage lien upon one Franklin automobile, and alleged that the appellants herein were members and stockholders in an organization or association known as the Waldman-Ross Motor Company, and that such notes were given to said Waldman-Ross Motor Company, and by the said Waldman-Ross Motor Company duly indorsed and transferred to the appellee Cravens-Cage Company, and that said notes provided for the holder and owner thereof to declare them all due upon the failure to pay any one at maturity, and that one of said notes had matured on the 30th day of November, 1920, and had not been paid, and that the appellee Cravens-Cage Company had declared them all due.
"It was alleged that the instrument under which the organization was effected and of which appellants were shareholders and interested was duly recorded in the office of the county clerk of Jefferson county on the 20th day of April, 1920, prior to the date of the execution of the notes by the said L. F. Nini, and of which all of the appellants were shareholders and interested therein prior to the receiving of the notes by the said Waldman-Ross Motor Company and the execution thereof by the said Nini, and alleged that under the terms of said agreement executed by the several defendants they were conducting an enterprise for profit and that the instrument was executed by the appellants, H. A. Sanders, B. A. Steinhagen, G. W. Swain, M. Waldman, Gus Bienvenu, and S. M. Hargrove, and that by the terms of such instrument they were constituted the agents of each other and of the other appellants herein, and especially alleged that they constituted the defendant Waldman-Ross Motor Company and were the agents in the conducting and management of the affairs of said business, and alleged that, acting through the defendant Swain, who was acting for himself and was fully authorized to act for each of the other appellants and to deal with the public, appellant became bound to the said Cravens-Cage Company as indorsers. The appellee, Cravens-Cage Company, further alleged that if it was mistaken in the allegation of agency, then they alleged that they were partners in the business enterprise for profit under the name of Waldman-Ross Motor Company, and that the parties named as agents and representatives were the only authorized agents and representatives of the aforesaid enterprise to manage and conduct its affairs, and sought a recovery against them as indorsers for the principal, interest and attorney fees on the note sued on, upon the theory that their liability attached by their being shareholders. The appellee, Cravens-Cage Company, further alleged that the purported chattel mortgage was invalid, and that in fact no such motor car as described therein was ever delivered to the said Nini, and the transaction was wholly fictitious, but that the appellee, Cravens-Cage Company, believed it was a bona fide transaction and relied upon it as such, and with prayer for its debt against Nini as principal and each of the appellants herein as indorsers.
"The appellant answered under oath denying any partnership or agency, and specially pleaded the terms and stipulations of the agreement of association and each of them denied any personal liability.
"The appellant, M. Waldman, specially denied that he was ever a trustee of such organization or acted as such. Upon trial of the case judgment was rendered in favor of the appellant for $1,651.95 against L. F. Nini, as principal, and C. C. Snell, H. G. Bevil, M. L. Boyer, G. W. Swain, Gus Bienvenu, M. Waldman, B. C. Ross, B. A. Steinhagen, Guy Cofman, O. K. Swan, E. E. Hartford, H. A. Sanders, Harvey Sanders, F. B. Hart, and the Waldman-Ross Motor Company, jointly and severally, as indorsers
and for all costs, and all the other defendants were dismissed from said proceeding with their costs.
"The appellant excepted to the judgment and ruling of the court and gave notice of appeal to the Court of Civil Appeals for the First Supreme Judicial District at Galveston, Tex., and within time thereafter filed their appeal bond, and have brought the cause to this court for revision of the errors that they contend were committed on the trial hereof.
"The real issues of this case are to be determined by the proper construction of a written instrument which is contended by appellant to be an imperfect common-law trust, and in which there is no personal liability or responsibility to be charged against them as members of or shareholders therein."
The following additional statement from the brief of appellee explains more fully the relations of the parties to this suit and the issues involved in this appeal:
"The statement of the nature and result of the suit in the trial court as contained in appellants' brief is in the main correct. However, neither from this statement nor appellants' brief is it clear as to who the appellants are. Appellee, the Cravens-Cage Company, recovered judgment in the trial court against the defendant L. F. Nini, as principal, and the defendants, C. C. Snell, H. G. Bevil, M. L. Boyer, G. W. Swain, Gus Bienvenu, M. Waldman, B. C. Ross, B. A. Steinhagen, Guy Cofman, O. K. Swan, E. E. Hartford, H. A. Sanders, F. B. Hart, Harvey Sanders, and Waldman-Ross Motor Company, an unincorporated association of which all of said last-named defendants, other than the defendant L. F. Nini, were members, jointly and severally as indorsers. The defendant L. F. Nini is named as appellant, but such defendant has not appealed from the judgment as rendered in the trial court; neither have some of the other defendants as against whom judgment was rendered appealed. The only defendants who filed an appeal bond are M. Waldman, B. C. Ross, B. A. Steinhagen, Guy Cofman, O. K. Swan, E. E. Hartford, H. A. Sanders and Harvey Sanders."
The articles of association referred to in the above statements are as follows:
"No. 24,487.
"The State of Texas, County of Jefferson.
"Know all men by these presents: That we, the subscribers and trustees hereto, have this the 29th day of March, A. D. 1920, entered into an agreement and contract to create a trust under which the appointed and constituted trustees hereunder shall be empowered to operate a business as hereinafter explained by this instrument.
"To this end the subscribers associate themselves together in the formation of a trust for the purposes hereinafter stated, and without personal liability of the shareholders herein. It is intended and proposed that all others than the subscribers hereto who may become the owners of shares of stock in this association ipso facto agree to accept the terms of this instrument and declaration of trust to all intents and purposes as if they were the original subscribers hereto. Further it is understood and agreed that we and such other shareholders as may come into said association are associated together merely and solely for the purpose of being cestui que trustents of the trust hereby created, thus being entitled to the equitable and beneficial interest of all profits and property, both personal and real of the trust estate hereby created our respective proportionate interests to be determined by the number of shares held by each of us, said shares being representative of such interest.
"This association shall be known as the `Waldman-Ross Motor Company.'
"The disposition of said stock in said company is to be made by the trustees in the manner hereinafter set out.
"We do now covenant and declare that the following are and shall be the fundamental articles of said trust by which we and all persons who at any time hereafter may transact any business with the said trustees shall be bound and concluded. The contracting parties and trustees herein signify and confirm by their certificates and signatures to this instrument their acceptance of all of its terms and their obligations to perform and discharge the duties imposed by this instrument.
"I. The capital stock of said association, which is to be known as aforesaid by the name of Waldman-Ross Motor Company, is one hundred thousand ($100,000.00) dollars, to be divided into one thousand (1000) shares of the par value of one hundred ($100.00) dollars each.
"II. M. Waldman, S. M. Hargrove, H. A. Sanders, B. A. Steinhagen, G. W. Swain, and G. Bienvenu are here and now designated trustees of said trust, with powers and duties and the limitation of same as hereinafter specified.
"III. G. Bienvenu, trustee, is to fill the office of secretary and S. M. Hargrove, trustee, is to fill the office of treasurer, and shall perform such other duties as are necessary and usually performed by such officers in a similar business, but it is understood that they shall have no power to bind the trust by contract, except as such power is delegated to them in writing by a majority of the trustees.
"IV. G. W. Swain, trustee, shall be the president and general manager of said company with powers and duties, authority and rights, to do all things necessary in assisting to carry out the purposes of said trust as hereinafter set out, and the said trust...
