Shaw v. Centerfield Oil Co.

• Decision Date: 19 September 1928
• Docket Number: (Motion No. 6581; No. 7272.)
• Citation: 10 S.W.2d 144
• Parties: SHAW, Banking Com'r, v. CENTERFIELD OIL CO. et al.
• Court: Texas Court of Appeals

10 S.W.2d 144

SHAW, Banking Com'r, v. CENTERFIELD OIL CO. et al.

(Motion No. 6581; No. 7272.)

Court of Civil Appeals of Texas. Austin.

September 19, 1928.

Rehearing Denied October 10, 1928.

Appeal from District Court, Lampasas County; Lewis H. Jones, Judge.

Suit by the Centerfield Oil Company and others against James Shaw, Banking Commissioner. Judgment for plaintiffs, and defendant appeals. Affirmed.

L. C. Sutton and Jno. W. Goodwin, both of Austin, for appellant.

McCLENDON, C. J.

This is a suit to establish a claim of the Centerfield Oil Company, "a joint-stock association organized and operating as such under what is commonly known and called a written trustees' agreement," as an unsecured, noninterest-bearing checking account and deposit in the Lometa State Bank, closed by the banking commissioner, and, as such, as payable out of the guaranty fund. The suit was brought by Centerfield Oil Company, acting through its trustees, F. E. Bedecheck and Frank Ezzell, also by Bedecheck and two others who were stockholders in the oil company; the petition alleging:

"This suit is brought in the name of Centerfield Oil Company by said stockholders in their name and for their use and benefit, and for the use and benefit of all other shareholders and stockholders in said Centerfield Oil Company."

The judgment upon trial before the court without a jury was in favor of "plaintiff," establishing and classifying the claim as prayed for. The banking commissioner has appealed.

Before considering the merits of the case, we will dispose of two questions of practice raised by appellant: (1) A suggestion that the judgment is not final because it does not dispose of the interests of all plaintiffs; and, (2) that since the oil company was a partnership, all shareholders were necessary parties.

While it is true that the named shareholders were parties plaintiff to the suit, it is clear from the above quotation from the petition that the suit was brought by them for the benefit of the oil company. But one cause of action was alleged, that of having the claim established and classified as one of the oil company; and we think the judgment of the court in the light of the pleadings in effect establishes and classifies the claim as that of plaintiff company.

The contention that other shareholders were necessary parties plaintiff is overruled. Article 6133, R. S. 1925, provides that any unincorporated joint-stock company or association "may sue or be sued in any court of this state having jurisdiction of the subject-matter in its company or distinguishing name; and it shall not be necessary to make the individual stockholders or members thereof parties to the suit."

Upon the merits of the case appellant pleaded two defenses: First, it admitted that the oil company had had a deposit of $2,000 in the Lometa bank, but alleged that prior to the closing of the bank the account was transferred to Frank Ezzell, who was then president of the oil company, who, after the transfer to his account, withdrew the deposit from the bank; and, second, in the alternative, that Ezzell was the owner of 236 of the 300 shares of stock of the oil company; that he got the benefit of the deposit through withdrawals under his personal account, and the oil company could therefore recover only 44/300 thereof, which was the interest of the other shareholders in the oil company.

The evidence will warrant the following findings in support of the judgment:

Early in 1922 the oil company made four deposits in the bank of $500 each. At that time Ezzell had an individual account with the bank. There was some question whether the oil company's deposit had been reduced to $1,900; but as plaintiffs made no claim in this regard, we will treat the deposit as having been so reduced. On several dates during 1922 the bank made transfers from the oil company's account to the individual account of Ezzell. These transfers, five in number, aggregated $1,900 and balanced the account. Ezzell's account showed these transfers as deposits, and also showed that his personal account had in December, 1922, been reduced to $145.61. On January 27, 1925, a ledger account was opened up on the books of the bank in favor of the oil company, beginning with a credit of $1,900. Several checks were drawn on this account, which reduced it to $1,543, the amount of the claim. Ezzell testified that the transfers from the oil company's to his individual account were never authorized and were not known to him until some time later; that he had tried for about two years to get a statement of his account, but was unable to do so, and did not know that his account was overdrawn; that he had at one time offered to loan the oil company's money to one of the officials of the Lometa bank, a relative of his, provided arrangements could be made to repay in 60 days, but this offer was not accepted, and at one time offered to permit the bank to withdraw...