Pacific American Gasoline Co. v. Miller

• Decision Date: 24 May 1933
• Docket Number: No. 4085.,4085.
• Citation: 61 S.W.2d 1024
• Parties: PACIFIC AMERICAN GASOLINE CO. OF TEXAS et al. v. MILLER et al.
• Court: Texas Court of Appeals

61 S.W.2d 1024

PACIFIC AMERICAN GASOLINE CO. OF TEXAS et al. v. MILLER et al.

No. 4085.

Court of Civil Appeals of Texas. Amarillo.

May 24, 1933.

Rehearing Denied July 5, 1933.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by Horace G. Miller and others against the Pacific American Gasoline Company of Texas and others. From an order overruling defendants' plea of privilege as against all plaintiffs except named plaintiff, defendants appeal.

Affirmed.

Walter David and Trulove & Frazee, all of Amarillo, for appellants.

Weeks, Morrow & Francis, of Wichita Falls, for appellees.

MARTIN, Justice.

Parties to this appeal will be designated as in the trial court.

The only question involved is the action of the trial court in overruling a plea of privilege.

Such of the facts pleaded by plaintiffs and deemed essential to a proper understanding of the question hereafter discussed are, in substance and effect, briefly as follows:

The Pacific American Gasoline Company of Texas, one of the defendants herein, was the owner of a casinghead gasoline plant situated and operated in Hutchinson county, Tex. It had a contract with the J. M. Huber Company of Louisiana, Inc., to buy from it residue gas, and one with the J. M. Huber Petroleum Company to furnish to it casinghead gas. All of its stock was owned by the Pacific American Gasoline Company of Nevada.

About May, 1930, the J. M. Huber Petroleum Company purchased all of said stock and all the assets of the American Gasoline Company of Texas and went into possession of same. Prior to this time the Pacific American Gasoline Company of Texas had issued $350,000 in gold notes, payable to bearer, which notes were owned and held by the stockholders of the said Nevada corporation. Each of these notes contained a provision in substance that so long as they were outstanding the company should pay no dividends, make no sale of its entire assets, or create any future indebtedness without the consent of 80 per cent. of the holders thereof. These notes were dated in March, 1929, and due January 1, 1934. In the event of payment before maturity, all were to be paid ratably, so as not to prefer one note holder over another. In the contract of sale with the Huber Company already referred to, the existence and validity of these notes were recognized in the contract. Certain provisions were inserted therein having to do with the protection of said note holders. Some of these notes appear to have been given circulation by their owners and more than $100,000 of them came into the possession of plaintiffs. Thereafter their validity was denied and a purported settlement was made between the J. M. Huber Petroleum Company and certain of the note holders, who were less than 80 per cent. of the original number, by the terms of which their amount was reduced some 25 per cent. and a deed of trust was executed on the properties of the Pacific American Gasoline Company to secure these. This settlement excluded all the plaintiffs, and certain facts are alleged to show that they and each of them will lose their indebtedness unless relief is granted to them and that the effect of such agreement was to prefer some of the parties who originally gave these notes circulation as against those who had purchased same in good faith in the open market, and that a conspiracy existed between defendants for the purpose of defrauding these plaintiffs and preventing the payment of the notes held by them. We deem it unnecessary to lengthen this opinion by a recital of all facts alleged.

A suit was filed by Miller, a purchaser of some of these original "gold notes," on the 13th day of February, 1932, in Potter county, complaining of the Pacific American Gasoline Company of Texas and of Nevada, the J. M. Huber Petroleum Company, the J. M. Huber Company of Louisiana, Inc., and R. C. Ware, who is named as trustee in the trust deed already mentioned and who, it is alleged, resided in Potter county. The two Huber companies were alleged to be foreign corporations doing business in and with an agent in Hutchinson county, Tex. These were called primary defendants. The holders of the settlement notes secured under the contract aforesaid were named as secondary defendants. The prayer of the petition was in part for the cancellation of said trust deed and for an injunction against Ware, and certain others of the defendants.

The district court of Potter county had in 1932 an April, July, and October term to convene after the filing of Miller's suit. On the 14th day of April, 1932, Ard, Anderson, and Murphy intervened, adopting the allegations of the plaintiff Miller's said petition. On July 22, 1932, the remaining plaintiffs herein intervened, also adopting the allegations of said petition. On April 12, 1932, all of the defendants except the Pacific American Gasoline Company of Nevada filed an answer as against the original plaintiff Horace G. Miller, on August 9, 1932, the Pacific American Gasoline Company of Texas and R. C. Ware filed an answer to the intervention of said last-named parties. When court convened in August, 1932, the defendants...