Shelton v. Trigg

• Decision Date: 13 October 1920
• Docket Number: (No. 1584.)
• Citation: 226 S.W. 761
• Parties: SHELTON v. TRIGG et al.
• Court: Texas Court of Appeals

226 S.W. 761

SHELTON v. TRIGG et al.

(No. 1584.)

Court of Civil Appeals of Texas. Amarillo.

October 13, 1920.

Rehearing Denied January 5, 1921.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Suit for partnership accounting by D. C. Trigg and another against J. M. Shelton. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Hendricks & Mood, of Amarillo, and Coffee & Holmes, of Miami, for appellant.

Kimbrough, Underwood, Jackson & Simpson and Miller & Guleke, all of Amarillo, for appellees.

HALL, J.

This is an action for a partnership accounting brought by D. C. Trigg and his son, S. L. Trigg, against appellant, Shelton. The parties entered into a partnership in the month of July, 1912, purchasing from the Freehold Land & Cattle Company, Limited, hereafter called the syndicate, certain live stock and leasing certain lands belonging to the syndicate. The memorandum agreement between the partnership and the syndicate provides, in substance, that the syndicate agrees to sell to the partnership all the cattle, horses, and mules located on its ranch in the counties of Dallam, Hartley, Oldham, and Deaf Smith, there being approximately 22,000 head of cattle and 400 head of horses and mules. The contract provides for the delivery of the live stock on or before the 1st day of November, 1912, with the privilege of gathering and delivering any remnant of cattle on or before May 1, 1913. It further provides that the partnership shall pay for all cattle delivered at the rate of $37 per head, but that unmerchantable cattle and the calves of 1912 are not to be counted; that horses and mules shall be paid for at $60 per head, payment for the live stock to be made as follows:

"The sum of $50,000 in cash upon execution of this contract and the sum of $200,000 in cash on November 1, 1912, the balance to be evidenced by five notes of equal amounts, executed by (the partners) jointly and severally, payable to the syndicate in whole or in part on or before the 1st day of November of each year for five successive years, beginning with November 1, 1913, with interest thereon from November 1, 1912, at the rate of 6 per cent. per annum, interest payable annually."

There are other stipulations with reference to the execution of a deed of trust upon the property, sale of the purchased property by the partnership, the payment for cattle to be subsequently delivered and the branding of the same, not necessary to be set out. The contract further provides that the syndicate shall lease to the partnership for a period of five years and four months from January 1, 1913, approximately 600,000 acres of land, situated in the above-named counties, at the rate of 10 cents per acre per annum, the rent to be paid quarterly. It is further provided that the partnership shall keep all buildings, fences, wells, windmills, etc., upon the leased premises in repair at the expense of the partnership, except that the materials for repairing wells, windmills, and drinking tubs should be furnished by the syndicate at its expense. The partnership is given the privilege of subletting any part of the leased premises, but is to be held responsible to the syndicate for the payment of the rent due the syndicate on all lands subleased. The partnership is to have the free use of all tools, farming implements, repairing outfits, and wagons located on the premises, with certain exceptions named. This contract purports to have been executed in the month of July, 1912, the exact date being left blank. On the 31st day of July, 1912, the written contract of partnership as entered into between appellant, Shelton, and D. C. and S. L. Trigg is as follows:

"State of Texas, County of Potter.

"This memorandum of agreement witnesseth:

"Whereas, J. M. Shelton, of Wheeler county, Tex., party of the first part in this contract, and D. C. and S. L. Trigg, of Carson county, Tex., parties of the second part in this contract, have this day by written instrument entered into a contract with the Capitol Freehold Land & Investment Company, Limited, for the purchase of certain cattle and other personal property and for the leasing of certain lands therein described, and to which reference is hereby made for a more particular description, and also referring herein to covenants and stipulations therein expressed as to the liability of the parties herein mentioned upon that contract; and whereas, the parties of the first and second parts are desirous of conducting a ranch and cattle business under the firm name of Shelton & Trigg, it is agreed and stipulated as follows:

"First. That the said parties of the second part are to contribute their work and labor under the direction and supervision of the said party of the first part in the handling of the ranch business of the said Shelton & Trigg, and in taking care of said cattle upon the range, and conducting said business as to the details with their best skill and labor, without any cost whatever for such services during the term of said partnership.

"Second. Said party of the first part is to furnish the sum of $250,000, $50,000 to be paid to the Capitol Freehold Land & Investment Company, Limited, of even date herewith, and the sum of $200,000 on the 1st day of November, A. D. 1912, and said parties of the second part hereby promise to pay to the said party of the first part the sum of $125,000 and to be liable jointly and severally to the said J. M. Shelton for the principal and interest, with interest from the date of such payments by parties of the second part at the rate of 8 per cent. per annum until paid, interest payable semiannually, first note maturing five years from date, second note to be executed the 1st day of November, 1912, for the sum of $100,000, maturing the 30th day of July, 1917, but all to mature also under the stipulations and conditions of this said contract in the event of a winding up of the affairs of said partnership or a sale from either party to the other; same to be secured by chattel mortgage of date of second note upon the interest of the parties of the second part in the lease of the Capitol Freehold Land & Investment Company, Limited, to the contracting parties herein, and upon the cattle and horses and all personal property purchased by them and described in contract of said corporation to the said parties herein named, and the said chattel mortgage executed by the said parties of the second part to the said J. M. Shelton, party of the first part, upon said property mentioned, is also covered by advances made by the said J. M. Shelton, party of the first part, either to the said parties of the second part or for the benefit of said partnership, to be closed and evidenced by note of the parties of the second part, with interest, and said chattel mortgage is to further cover their interest in all other personal property of whatsoever nature and wheresoever situated for the benefit of the said J. M. Shelton, whether owned or possessed now or acquired and brought into the partnership assets in the future.

"Third. Said J. M. Shelton is to have the sole and exclusive management of the affairs of said partnership and of said property of said partnership assets over said parties of the second part, and no cattle or other personal property are to be sold by either of said parties of the second part or jointly without the consent of the said party of the first part, and the said control of all matters with reference to the partnership affairs is extended to any detail in actual handling and management of the affairs of said ranch and of the cattle upon the same, with the same unlimited control by the said J. M. Shelton, whenever he desires to exercise said right, to employ and discharge men upon the ranch; and it is further agreed if at any time either or both of the parties of the second part shall become incapacitated by sickness or otherwise, or refuse to contribute the adequate amount of work and labor under the supervision of said party of the first part for the handling of said ranch business, or in the event of the death of either or both of said parties of the second part, said party of the first part is to have the right to employ any other man or men to take the place of said parties of the second part, at the expense and liability of said parties of the second part, or their estate, in accordance with the condition creating the necessity for such substitution; and it is further agreed that in the event of the death of either party of the second part, or both, the said J. M. Shelton will still have the sole and exclusive management and control as surviving partner of said property, without any interference from the administrator, representative, heirs, or assigns of either or both of said deceased partners, in winding up the affairs of said partnership as surviving partner, dispose of the assets, pay the debts, including all of the expenses of the handling of said business, with the right to retain the proper amount for the payment of any liabilities by the parties of the second part to the party of the first part, and the balance, if any, to be paid by party of the first part, to the proper representatives of the parties of the second part.

"Fifth. It is further agreed that, in the event of the death of the said party of the first part, the administrator, executor, or representative, under the law, of his estate, will have the same right and the parties of the second part hereby extend the same privilege to said administrator, executor, or personal representative as is enjoyed by him, the said party of the first part, under this contract, that is, to have the same management and control with the same obligations and liability to said executor, administrator, or personal representative, as stipulated for in favor of said party of the first part, under the terms of this said contract.

"Sixth. The said party of the first part will have the right, at...