Schwab v. Schlumberger Well Surveying Corp., 11780.

• Decision Date: 06 June 1946
• Docket Number: No. 11780.,11780.
• Parties: SCHWAB et al. v. SCHLUMBERGER WELL SURVEYING CORPORATION.
• Court: Texas Court of Appeals

195 S.W.2d 412

SCHWAB et al. v. SCHLUMBERGER WELL SURVEYING CORPORATION.

No. 11780.

Court of Civil Appeals of Texas. Galveston.

June 6, 1946.

Rehearing Denied June 27, 1946.

Appeal from County Court at Law, No. 1, Harris County; Ben Moorhead, Judge.

Action on note by Schlumberger Well Surveying Corporation against F. P. Schwab and M. F. Schwab and another. From the judgment, the named defendants appeal.

Affirmed.

K. C. Barkley, Jesse A. Pardue, and Herbert Tigner, all of Houston, for appellants.

Elliott A. Johnson and Horace C. Wells, both of Houston, for appellee.

GRAVES, Justice.

This appeal is from a $679.80-judgment, rendered by the County Court at Law of Harris County, upon an agreed statement of facts, in favor of appellee corporation against appellants F. P. and M. F. Schwab, as individuals, and against S. K. & C. Company, a Texas corporation, upon the corporation's note to the appellee for $618, dated January 1, 1941, and maturing six months thereafter.

The S. K. & C. Company did not defend below, hence has not appealed, but the two Schwabs there denied any liability against them, under Article 7091, Vernon's Revised Civil Statutes of Texas, pursuant to which the trial court held them amenable to the S. K. & C. corporation's notes, in the facts obtaining, the same as if they had been partners with it in the note sued upon, instead of, as they admittedly were, officers and directors thereof at the time; they further pled, in the alternative, that if they were otherwise held to be personally liable because of that statute, then appellee's claim against them on the note was barred at the time of the suit by the two years statute of limitation, R.S. Article 5526.

An abstract of what are deemed the more material facts so agreed upon is this:

"This is a suit upon a promissory note dated January 1, 1941, in the sum of $618.00, payable six months after date thereof, with interest at the rate of six per cent per annum thereon, from date until paid, whereby the makers promised to pay to Schlumberger Well Surveying Corporation, or its order, at Houston, Texas, said sum, according to the face and tenor of said note, and executed by S. K. & C. Company, by F. P. Schwab, President, and countersigned and attested by M. F. Schwab, Secretary, * * *.

"The original obligation out of which this indebtedness began was created by the S. K. & C. Company, a Texas corporation, for the services of the plaintiff (Schlumberger Corporation) in making surveys of said wells hereinafter specified, * * *.

"On July 2, 1940, the right of S. K. & C. Company to do business was suspended by the State of Texas for failure to pay its franchise tax, as evidenced by certificate by Claude Isbell, Secretary of State, State of Texas, dated May 21, 1945, and further certifying that the right of such corporation to do business had not been revived as of the date of said certificate * * *.

"After S. K. & C. Company's right to do business had been suspended and not revived by the State of Texas for failure to pay its franchise tax, and during the time of such suspension, F. P. Schwab, President of S. K. & C. Company, in a letter dated July 29, 1940, * * * offered the note dated back to July 1, 1940, in the sum of $600.00, payable to the order of Schlumberger Well Surveying Corporation by S. K. & C. Company, per F. P. Schwab, President, attested by M. F. Schwab, Secretary, due six months after date. This note was not paid when due, and S. K. & C. Company, per F. P. Schwab, President, in a letter dated January 7, 1941, * * * after the $600.00 note dated July 1, 1940, was past due, offered Schlumberger Well Surveying Corporation a renewal note in the sum of $618.00, dated January 1, 1941, extending the time for payment of the $600.00 note, dated July 1, 1940. Schlumberger Well Surveying Corporation, per Elliott A. Johnson, addressed a letter to S. K. & C. Company, dated January 31, 1941, acknowledged receipt of the note in the sum of $618.00, dated January 1, 1941, representing renewal and extension of the $600.00 note dated July 1, 1940, and returned the note in the sum of $600.00, dated July 1, 1940, marked `Cancelled by new note dated January 1, 1941', with said letter. * * * The said note dated January 1, 1941, in the sum of $618.00, has never been paid and is the subject of the suit herein.

"The S. K. & C. Company was duly incorporated under the laws of the State of Texas on October 24, 1938. The surveying services of the Schlumberger Well Surveying Corporation, which formed the basis for the original indebtedness, were performed by plaintiff for S. K. & C. Company, duly acting under its power and authority as a Texas corporation. The right of the S. K. & C. Company to do business was suspended by the State of Texas on July 2, 1940, for failure to pay its franchise tax, as evidenced by certificate of Claude Isbell, Secretary of the State of Texas, dated May 21, 1945, and further certifying that the right of the S. K. & C. Company to do business had not been revived as of the date of said certificate, * * *. The note sued upon was executed by S. K. & C. Company, per F. P. Schwab, President, attested by M F. Schwab, Secretary, subsequent to the date and during the suspension of the right to do business of said corporation by the State of Texas."

In so rendering its judgment, the trial court stated conclusions of law, which may be summarized as follows:

"1. F. P. Schwab and M. F. Schwab became personally liable on the note sued on by reason of the provisions of Texas R.S.Article 7091.

"2. F. P. Schwab and M. F. Schwab, in a letter dated July 29, 1940, and after S. K. & C. Company's right to do business in the State of Texas had been suspended, offered a renewal note, asking for an extension of time, which was accepted by Schlumberger. The act thereby became their personal act, as they procured a forbearance by Schlumberger to sue, and executed a new promise to pay interest, provided the note should be extended to the new due date, thereby creating a new obligation, which, under the terms of Article 7091, supra, was their personal obligation.

"3. The note sued on was a renewal note, the giving of which created a new obligation based on a valuable consideration. The new obligation is an agreement to pay interest, in consideration of Schlumberger's agreeing not to sue until the new note became due. *...