San Antonio & A. P. Ry. Co. v. D. M. Picton & Co.

• Decision Date: 01 December 1937
• Docket Number: No. 10191.,10191.
• Citation: 111 S.W.2d 842
• Parties: SAN ANTONIO & A. P. RY. CO. et al. v. D. M. PICTON & CO. et al.
• Court: Texas Court of Appeals

Page 842

111 S.W.2d 842

SAN ANTONIO & A. P. RY. CO. et al. v. D. M. PICTON & CO. et al.

No. 10191.

Court of Civil Appeals of Texas. San Antonio.

December 1, 1937.

Rehearing Denied January 5, 1938.

Error from District Court, Twenty-Eighth District, Nueces County; W. B. Hopkins, Judge.

Suit by D. M. Picton & Company and others against the San Antonio & Aransas Pass Railway and others. From an adverse judgment, the named defendant appeals.

Affirmed.

John C. North, of Corpus Christi, and Baker, Botts, Andrews & Wharton and John T. Maginnis, all of Houston, for appellant.

Frank A. Leffingwell, Ralph W. Currie, Dick Dixon, and Leffingwell, Currie & Davis, all of Dallas, for appellees.

MURRAY, Justice.

This suit was instituted in the district court of Nueces county on December 5, 1922, in the name of D. M. Picton & Company, a private corporation, against the San Antonio & Aransas Pass Railway Company, to recover on certain shipments of freight, consisting of 1,460 carloads of rock shipped from Beckman, Tex., to Corpus Christi, Tex., between October 27, 1920, and August 6, 1921, alleging that D. M. Picton & Company was required to pay excess freight charges in the sum of $8,490.33. This rock was to be used by D. M. Picton & Company in constructing a break-water for the city of Corpus Christi. The petition was signed by James M. Taylor, as attorney for plaintiff. James M. Taylor was at the time city attorney of the city of Corpus Christi and also engaged in the private practice of law.

On May 2, 1924, a first amended petition was filed by the same plaintiff against the same defendant. On August 14, 1934, a second amended original petition was filed. This petition named the same plaintiff and defendant, except the Texas & New Orleans Railroad Company was added as a party defendant. This petition was signed by attorneys other than James M. Taylor. On November 9, 1936, a third amended petition was filed, in which petition D. M. Picton & Company was described as being a partnership composed of D. M. Picton, A. N. Peckham, and R. P. Clark, and the city of Corpus Christi was named as the real party at interest. It was alleged that on October 5, 1921, D. M. Picton & Company assigned to the city of Corpus Christi any claim they had, arising out of any illegal charges collected by the San Antonio & Aransas Pass Railway Company, and, further, that such assignment specifically authorized the city of Corpus Christi to make, claim, and prosecute in plaintiff's name an action for the refund of such illegal and excessive charges and that the original suit was filed for the use and benefit of the city of Corpus Christi. This petition further alleges that D. M. Picton & Company was a corporation when the contract with the city was made, but that it was dissolved on December 27, 1920, during the time the breakwater was being constructed, and that thereafter the business was carried on as a partnership.

D. M. Picton testified that he was president of the corporation of D. M. Picton & Company until the dissolution thereof, in the latter part of 1920, after which time he was the senior member of the partnership of D. M. Picton & Company, composed of himself, A. N. Peckham, and R. P. Clark. He further testified as follows: "It is a fact that the city of Corpus Christi repaid us full for all freight charged and paid by us, including the increased freight rate sued for in this suit, on all of the rock used in the construction of the breakwater, and we have no pecuniary interest in this suit * * * Neither myself or A. N. Peckham or R. P. Clark, or D. M. Picton & Company, Incorporated, ever at any time had or claimed any amount was due us, or either of us, by reason of this increased freight rate. * * * It is a fact that neither A. N. Peckham, R. P. Clark or D. M. Picton & Company, Incorporated, ever at any time employed an attorney to bring this suit, or any other suit by reason of the increased freight rate * * * never did anything except help City of Corpus Christi and turned over all our records to them. * * * No part of any judgment recovered in this case would be due us, and we have never in any manner obligated ourselves to pay any Court costs, or attorney's fees, or other expenses, in connection with this suit, and any judgment, or sum of money that might be recovered, or paid in this suit, would be due and payable to the City of Corpus Christi."

There is other testimony in the record tending to establish the fact that this claim belonged to the city of Corpus Christi and that the suit was instituted from the beginning for the benefit of the city, though this fact was not disclosed by any pleading in the case until the filing of the third amended original petition.

The trial was to a jury, but at the close of the testimony the trial court instructed a verdict for plaintiffs in the sum of $13,899.12 principal, with 6 per cent. interest from August 6, 1921, and upon such verdict the court rendered judgment for the city of Corpus Christi and D. M. Picton, A. N. Peckham, and R. P. Clark, for the use and benefit of the city of Corpus Christi in the sum of $13,899.12 principal, and $12,788.08 interest, making a total of $26,677.20. The judgment further provided that any payment be made to the city of Corpus Christi. From this judgment the railway companies have prosecuted this appeal.

Appellants contend that this cause of action is barred by the two and four year statutes of limitation, in that D. M. Picton & Company, Incorporated, is shown not to have any interest in this lawsuit and neither the individual partners nor the city of Corpus Christi were brought into this suit until some fourteen years after the original suit was filed and some sixteen years after the cause of action, if any, accrued. We overrule this contention. The filing of the suit in the name of D. M. Picton & Company, a corporation, suspended the running of limitations against this cause of action notwithstanding the fact that D. M. Picton & Company was in truth a partnership. The error in the description of the parties plaintiff was a mere misnomer, which was properly corrected by amendment before the suit went to trial. J. L. Jones & Co. v. Darden, Tex.Civ.App., 29 S.W.2d 479; Crabtree v. Markham Lumber Co., Tex.Civ.App., 238 S.W. 368; Ledbetter v. Moffett, Tex.Civ.App., 96 S.W.2d 990; Amarillo Commercial Co. v. Chicago, R. I. & G. Ry. Co., Tex. Civ.App., 140 S.W. 377; Missouri, K. & T. Ry. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355, Ann.Cas.1914B, 134; Pope v. Kansas City, M. & O. Ry. Co., 109 Tex. 311, 207 S.W. 514; Rachford v. City of Port Neches, Tex.Civ.App., 46 S.W.2d 1057; Grayburg Oil Co. v. Corpus Christi Gas Co., Tex.Civ.App., 69 S.W. 2d 216.

The testimony shows that the city of Corpus Christi did in fact institute this suit in the name of its assignor, D. M. Picton & Company, even though the city's name did not appear until the filing of the third amended original petition. This fact is deducible from the testimony given by D. M. Picton, C. J. Howard, former city engineer of the city of Corpus Christi, and Frank A. Fellingwell, one of the attorneys for the city.

At common law choses in action were not assignable. Reef v. Mills Novelty Co., 126 Tex. 380, 89 S.W.2d 210. Therefore the only title transferred was the equitable title, or the beneficial interest, which would leave the assignor as the holder of the legal title. Article 569, R.C.S.1925, provides that both the legal and equitable title of a non negotiable written instrument may be assigned. 5 Tex.Jur. 9; Cleveland v. Heidenheimer, 92 Tex. 108, 46 S.W. 30; Reef v. Mills Novelty Co., supra. This suit, however, does not involve the transfer of a written instrument.

It is clear that the legal title to the chose in action herein involved remained in D. M. Picton & Company, and therefore this cause of action could be maintained by D. M. Picton & Company. In 5 Tex. Jur. 46, it is stated: "The mere fact that an assignor has transferred a chose does not prevent him from suing in his own name, if he has retained the legal title." In 5 Tex. Jur. 51, it is stated: "At common law an assignee may sue upon a chose in action in the name of his assignor and this is permitted in Texas. He may so prosecute the suit in all the courts including the appellate tribunals." See, also, Seiter v. Marschall, 105 Tex. 205, 147 S.W. 226.

It occurs to us that whether this suit was instituted by the city in the name of D. M. Picton & Company or by D. M. Picton & Company, it would nevertheless be sufficient to interrupt the running of the statutes of limitation.

Where the beneficial owner files a suit in the name of the assignor, it is not necessary that the petition show upon its face that it is brought for the benefit of another, if in truth the real beneficial owner instituted the suit in that form. Camden Fire Ins. Ass'n v. Eckel, Tex.Com.App., 14 S.W.2d 1020.

Appellants next contend that this suit having been filed in 1922 was abandoned as a matter of law before 1936, and therefore the filing of the third amended petition in 1936 was the institution of a new cause of action, barred by the two and four year statutes of limitation. We overrule this contention. This question was not raised in the trial court. There was no motion to dismiss for want of prosecution. There was no allegation that the suit had not been prosecuted with due diligence. There was no showing as to who had caused the delay. The court was not called upon to go into these questions. Appellants appeared at the trial, filed their answers and vigorously defended the suit; only after judgment had gone against them did they raise the question of abandonment. The fact that the proposition is numbered 3-a would indicate that it was thought of after the brief had been prepared. If the trial court had dismissed this cause for want of prosecution that action would not be reversed, unless it be shown that he abused his discretion in...