Tempel v. Dodge

• Citation: 31 S.W. 686
• Parties: TEMPEL v. DODGE et al.
• Decision Date: 19 June 1895
• Court: Court of Appeals of Texas

31 S.W. 686

TEMPEL v. DODGE et al.

Court of Civil Appeals of Texas.

June 19, 1895.

Appeal from district court, El Paso county; H. B. Barnhart, Special Judge.

Action by E. W. Tempel against G. M. Dodge and others for the possession of land. From a judgment for defendants, plaintiff appeals. Affirmed.

Ball & Tempel, R. E. Beckham, and Jay Good, for appellant. Millard Patterson, for appellees.

Conclusions of Fact.

JAMES, C. J.

The Pacific Railway Improvement Company was incorporated in 1879 in Connecticut, and was organized for the purposes of construction of the Texas & Pacific Railway. In the year 1884 the business for which the corporation was formed, viz. constructing railways, was practically completed, the only witness testifying on this subject adding that there were quite a number of outstanding matters unsettled, and we conclude that he meant by this matters growing out of the construction of the road. It appears that its charter provided that, "The officers of this corporation shall consist of a president, vice president, secretary and treasurer, and its affairs shall be managed by a board of five directors." A by-law provided that an executive committee shall immediately after the adoption of the by-laws be appointed by the president, and afterwards, after the annual election in each year, consisting of two members in addition to the president. Said committee shall continue in office until after the next annual election, and to said committee shall be and is hereby committed all the powers of the board of directors; and further provided that the president should have power to appoint such counsel, etc., as should be necessary for carrying on the business of the company, subject to the approval of the board of directors or executive committee. These constitute all the provisions of the charter and by-laws that the record discloses. There was no executive committee appointed in 1887, 1888, 1889, and until the one appointed February 25, 1890, which appears to have performed no business, and had no business to perform, but the making of the contract with appellant; from all of which we conclude that all matters of business growing out of the construction of railways that were not finished in 1884 were finished in 1887, when executive committees ceased to be appointed. In the year 1881 the company purchased about 17,000 acres of timbered lands, for the purpose of obtaining railway ties therefrom. This land was paid for by the then president, Dodge, with corporate funds, and the deed was made to Dodge, without objection. In this connection, Dodge testified: "The Pacific Railway Improvement Company had an interest in the land when it was purchased, but had no interest whatever in the land in February, 1890. After the land was purchased, the Pacific Railway Company found that it did not need it. When we came to settle up the affairs of the company, I purchased the land and paid the Pacific Railway Improvement Company for it, and the land has been held by me and has been in my possession and I paid the taxes on it ever since I purchased it." This testimony was admitted without objection, and is not contradicted. On February 23, 1890, C. L. Frost, who had been elected president in 1884, and another, a director by the name of John Adamson, entered into the following contract with appellant, E. W. Tempel, a lawyer, to wit: "The State of Texas, County of Tarrant. Know all men by these presents, that I, C. L. Frost, president of the Pacific Railway Improvement Company, a corporation duly incorporated under and by virtue of the state of Connecticut, in the U. S., by virtue of the authority...