Riley v. Treanor

• Decision Date: 14 March 1894
• Citation: 25 S.W. 1054
• Parties: RILEY et al. v. TREANOR.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 1054

25 S.W. 1054

RILEY et al. v. TREANOR.¹

Court of Civil Appeals of Texas.

March 14, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by T. W. Treanor against D. L. Riley and J. T. Riley. From a judgment for plaintiff, defendants appeal. Affirmed.

F. M. Hays and J. M. Eckford, for appellants. R. F. Blair, for appellee.

FLY, J.

T. W. Treanor sued D. L. Riley and J. T. Riley on a promissory note in words and figures as follows: "San Antonio, Texas, 12—19, 1891. On or before the first day of February, A. D. 1892, I promise to pay to T. W. Treanor nine hundred and seventy-three dollars and eighty cents, the same being balance due on stock in the California Fruit and Produce Co., to bear interest at the rate of eight per cent. per annum from maturity." This note was signed by appellants. Appellants, by general and special exceptions, by general denial, and by special pleas alleging that they, appellee, and one F. E. Clark had formed a corporation called the California Fruit & Produce Company; that D. L. Riley was elected president and general manager, and F. E. Clark secretary; that appellants were induced to go into the organization at the solicitation of appellee, who stated the corporation would do a large and profitable business; that the Texas National Bank of San Antonio would back the concern for $10,000 when it was organized; that the statements were untrue, and appellants stated they believed that appellee knew they were untrue when he uttered them; that, after the organization, Treanor returned to California, whence he came, and had not since given his care and attention to the business. Then there was an allegation of belief that Treanor and Clark had conspired to control the corporation's business; that the note sued on was given for stock in the California Fruit & Produce Company, and that it should be held as assets of the company; that the note was the only property of appellee in Texas, and should be held for debts of the corporation. There was a prayer for a decree dissolving the corporation and appointing a receiver of its property, and for a writ of injunction to suspend all further proceedings in this cause until the receiver could make his report. To this answer was appended, as an exhibit, an account for services rendered by appellants to the California Fruit & Produce Company. It would seem that a rule for an injunction was issued against F. E. Clark, commanding him to appear and show cause why an injunction should not issue against him, and why a receiver should not be appointed for the company. This he did by showing that the company was owing only about $100, and had available assets amounting to $2,893.10; that the corporation was not only solvent, but on a firm financial footing, and was making money; that the corporation nor Clark had any connection with the note sued on, and were not parties to the suit. This pleading was verified by the affidavit of F. E. Clark. This plea seems to have effectually disposed of the injunction and receiver branch of the suit, as the record is silent as to the action taken in the matter. The case was then transferred from the thirty-seventh to the forty-fifth district court, and appellee filed exceptions to the answer, which were sustained by the court. There was no error in this action of the court. The answer presented no defense whatever to the note. It seems to be a plain promissory note, given by appellants to appellee for certain shares in the corporation. There is nothing in the pleading to show that the shares were not the property of appellants, and we are unable to see what connection the corporation had with the note. The false representations alleged to have been made by appellee are not positively stated, but on belief, and there could have been no fraud in them, unless we are to suppose that with prophetic ken appellee could peer into the future, and tell what the prospective profits of an investment would be. The answer did not disclose any defense to the action.

Appellants then filed their first amended answer, which consisted of...