Nogals Oil & Gas Co. v. Merchants' & Planters' Bank

• Decision Date: 22 March 1924
• Docket Number: (No. 10558.)
• Citation: 264 S.W. 341
• Parties: NOGALS OIL & GAS CO. et al. v. MERCHANTS' & PLANTERS' BANK.
• Court: Texas Court of Appeals

264 S.W. 341

NOGALS OIL & GAS CO. et al. v. MERCHANTS' & PLANTERS' BANK.

(No. 10558.)

Court of Civil Appeals of Texas. Fort Worth.

March 22, 1924.

Rehearing Granted May 24, 1924.

Appeal from District Court, Clay County; H. R. Wilson, Judge.

Action by the Merchants' & Planters' Bank against the Nogals Oil & Gas Company and others. Judgment for plaintiff, and defendant H. Boddy appeals. Affirmed.

Wantland, Dickey & Glasgow, of Henrietta, for appellant.

Taylor & Taylor, of Wichita Falls, and H. M. Muse and R. D. Suddath, both of Henrietta, for appellee.

BUCK, J.

The Merchants' & Planters' Bank of Henrietta filed suit on October 7, 1920, against the Nogals Oil & Gas Company. By its amended petition, filed October 11, 1922, it made Charles L. Koethe and H. Boddy also parties defendant. The petition alleged that defendant Keothe had entered into a verbal contract with Howard Clay Oil Company, a copartnership composed of Clyde West, A. W. Tarrant, S. F. Dillard, Marvin Walsh, W. T. Kent, M. A. Weaver, T. H. Bourland, and H. Boddy, under the terms of which contract Keothe agreed to perform and did perform two months of labor at the agreed compensation of $500 a month; that by reason thereof the Howard Clay Oil Company became bound to pay said Keothe the sum of $1,000; that subsequently, and after the Howard Clay Oil Company had failed and refused to pay the same, Keothe filed and fixed his laborer's lien upon all the property belonging to said partnership and partners, and the said lien was duly recorded in the lien records; that thereafter the Howard Clay Oil Company sold to the Nogals Oil & Gas Company all of its said property, and the vendee assumed all the debts owing by the vendor; that thereafter, between July 7 and August 24, 1920, by virtue of a verbal contract, said Keothe agreed to perform and did perform 48 days of labor for the Nogals Oil & Gas Company, at an agreed price of $15 a day, or $720 total, and furnished materials to the company, of the value of $90.88, and that he filed and fixed and recorded his laborer's and materialman's liens upon all property belonging to said company; that thereafter Keothe, by verbal contract with the defendant Nogals Oil & Gas Company, worked 35 days for said company at $15 a day, and said company became bound to pay him $525, and that his laborer's lien was duly filed and fixed and recorded in Clay county; that on August 7, 1920, the defendant Keothe assigned to plaintiff bank, for a valuable consideration, said indebtedness and lien hereinabove set out; that the property upon which said liens were fixed was situated in Clay county, being certain leasehold interests held by said company on J. L. Huggins ranch, and all of the tools, casings, rigs, etc., owned by said company and situated in Clay county. It was further alleged that said Nogals Oil & Gas Company was a foreign corporation, with no permit to do business in Texas, and that in truth and in fact it was a partnership in so far as its Texas business and operations were concerned. It was further alleged that defendant H. Boddy was a stockholder in said company, and that by reason thereof said Nogals Oil & Gas Company and H. Boddy were liable for the various sums of indebtedness owing originally to said Keothe, and later assigned to plaintiff bank. It was further alleged that defendant Boddy well knew that the companies in which he held stock were indebted to defendant Keothe, and that Keothe had fixed his liens on the property in Clay county belonging to said companies, and that he had sold and caused to be sold all of said property, and had collected therefrom more than enough to pay all of said indebtedness originally held by Keothe, but now held by plaintiff under assignment from Keothe. A payment of $487.82 on the $1,000 indebtedness was acknowledged. It was further alleged that the labor expended and material furnished was for the special benefit of the property above described, and necessary to keep, preserve, maintain, and develop the same.

Defendant C. L. Keothe answered that he had assigned the several items of indebtedness and the liens to secure the same to plaintiff, and that subsequent to said assignment defendant Boddy had employed him as Boddy's agent to collect and sell said property of the Nogals Oil & Gas Company, paying him therefor stipulated wages.

Defendant Boddy answered by way of general demurrer, plea of misjoinder, a plea of departure, a general denial, and further denied under oath that he was at any of the times mentioned in plaintiff's petition a stockholder in either the Howard Clay Oil Company or the Nogals Oil & Gas Company. He further pleaded an adjudication and settlement of the matters in controversy, and that plaintiff released the Howard Clay Oil Company and accepted the Nogals Oil & Gas Company as its debtor.

The cause was tried before a jury upon special issues, and the jury found in answer thereto (a) that H. Boddy was a stockholder and a partner in the Howard Clay Oil Company at the time the indebtedness of $1,000 was incurred; (b) that on November 30, 1921, said Boddy learned that Keothe had assigned the laborer's lien to plaintiff bank; (c) that defendant Keothe had received on the $1,000 Howard Clay Oil Company lien the sum of $487.82, and such sum was the total amount received by Keothe to apply on all three laborer's liens; (d) that Keothe was the agent of said H. Boddy for the purpose of gathering up and selling the property set out in the liens fixed by Keothe. The jury further found in favor of plaintiff against defendant Keothe in the sum of $1,857.06. Upon this verdict, the court entered judgment in plaintiff's favor and against defendant Boddy in the sum of $512.18, with 6 per cent. interest from October 7, 1920, and against defendant Keothe in the sum of $1,857.06, with interest at 6 per cent. from October 7, 1920. It was further adjudged and decreed that the laborer's liens and the materialman's liens as they existed on August 6, 1920, be foreclosed. Defendant Boddy has appealed.

The assignments as contained in appellant's motion for new trial are:

"(1) That the court erred in admitting certain testimony, as shown by defendant Boddy's bills of exception Nos. 1 and 2, to which action of the court the defendant Boddy then and there duly excepted; (2) that the said verdict is contrary to the evidence; (3) that said verdict is contrary to law; (4) that said verdict is contrary to both the law and the evidence; (5) that the verdict is not supported by the evidence; (6) that the verdict is not supported by the law; (7) that the verdict is not supported by either the law or the evidence."

We think assignments 2 to 7, inclusive, are too general to merit or justify consideration. It appears that under article 1612, as amended by Acts 33d Leg. c. 136 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1612), at least in cases tried before the court, that an appellant is not limited to the assignments contained in the motion for new trial. Hess & Skinner Engineering Co. v. Turney, 109 Tex. 208, 203 S. W. 593; Harlan et al. v. Acme Sanitary Flooring Co. (Tex. Com. App.) 231 S. W. 348; Iola State Bank v. Trant, 240 S. W. 621, by the Galveston Court of Civil Appeals. But at least the transcript must contain the assignments relied upon, except as to fundamental error, and in the instant case there are no other assignments of error in the record. Therefore we will not consider assignments in motion for rehearing, except the first one.

The first assignment, under the motion for new trial, complains of two rulings of the trial court as to the admission of the testimony of two separate witnesses, to wit, Charles L. Keothe and Vincent Stine, whose testimony is of a different character, and only distantly connected. The assignment is probably bad for multifariousness. Davis v. Hudson (Tex. Civ. App.) 235 S. W. 1109; T. & N. O. Ry. Co. v. Diaz (Tex. Civ. App.) 234 S. W. 919, 926; Sanitary Mfg. Co. v. Gamer (Tex. Civ. App.) 201 S. W. 1071; Thornton v. Daniel (Tex. Civ. App.) 199 S. W. 832. Neither in the assignment as contained in the transcript nor in that contained in the brief is there any reference to the page of the transcript where the exception may be found. In Queen et al. v. Turman et al., 241 S. W. 786, by Chief Justice Harper, of this court, an assignment of this kind is held bad.

But, irrespective of any defect in this assignment, we find no error in the ruling in admitting the testimony of said Keothe that defendant Boddy had told him that he (Boddy) had $5,000 worth of stock in the Howard Clay Oil Company. The objection made to this testimony was that it was a conclusion, and hearsay, and not the proper way to prove the ownership of stock in a corporation. We think this evidence was admissible as an admission against interest. We overrule this assignment, the second in appellant's brief.

But there is an assignment in appellant's brief alleging fundamental error which merits consideration. It is urged that, in so much as the alleged and named partners of H. Boddy were not joined as parties defendant with Boddy in plaintiff's trial petition, that error in the judgment is manifest in the record. Appellant cites in support of this proposition the case of Frank v. Tatum, 87 Tex. 204, 25 S. W. 409; Lawn Production Co. v. Bailey (Tex. Civ. App.) 244 S. W. 283; Lewis v. Tyler Hotel Co. (Tex. Civ. App.) 257 S. W. 704. The judgment below can be sustained only on the ground that H. Boddy was a partner in the Howard Clay Oil Company. This company was not sued; neither were the alleged partners other than appellant made parties defendant. No judgment against the company as a partnership, nor against the other alleged partners, was sought. Judgment against H. Boddy, evidently as a partner in that concern, was rendered on the balance alleged to be due on the $1,000 indebtedness alleged to be owing by the Howard Clay Oil Company, less the amount alleged to have been...