Texas Land & Cattle Co. v. Molina

• Decision Date: 09 January 1924
• Docket Number: (No. 7063.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 258 S.W. 216
• Parties: TEXAS LAND & CATTLE CO. et al. v. MOLINA.
• Court: Texas Court of Appeals

258 S.W. 216

TEXAS LAND & CATTLE CO. et al. v. MOLINA.

(No. 7063.)^*

Court of Civil Appeals of Texas. San Antonio.

January 9, 1924.

Rehearing Denied February 6, 1924.

Error from Fifty-Seventh Judicial District Court, Bexar County; R. B. Minor, Judge.

Suit by C. B. Molina against the Texas Land & Cattle Company and another. Judgment for plaintiff, and defendants bring error. Reversed and remanded for new trial.

M. E. Sedberry and S. C. Autry, both of San Angelo, for plaintiffs in error.

H. S. Groesbeeck and A. L. Matlock, both of San Antonio, for defendant in error.

COBBS, J.

This case comes up on petition for writ of error entirely ignored, and is filed and briefed by both parties as on appeal.

This suit was brought by C. B. Molina, owner and holder of the note against Texas Land & Cattle Company, alleging it to be a concern organized under what is known as a common-law declaration of trust, and alleging that said concern was a copartnership composed of E. H. Murff, Oscar Eckert, and Richard Pluff, residents of Tom Green county, Tex., and other persons whose names and addresses are to plaintiff unknown. It is further alleged that the Texas Land & Cattle Company is a copartnership, and that the certificate holders therein are partners, and as such are liable to defendant in error.

The cause of action is founded upon a promissory note for $6,250, dated August 22, 1921, payable to the order of Elizabeth Harris Murff, one year after date, with 8 per cent. interest from date, with usual attorney's fees upon default, which note is signed, "The Texas Land & Cattle Company, by L. A. Murff, President."

There is no allegation of joint and several liability nor any allegation of the execution and delivery by the partnership of the note sued on. The prayer of the petition was simply for the recovery of a personal judgment against each of the defendants. By a supplemental petition, defendant in error alleged:

"That additional parties defendant, necessary and proper parties to this suit and that said parties are L. A. Murff and Mrs. E. H. Murff, wife of L. A. Murff, individually; said parties being residents of Bexar county, Tex., and said parties also being officers of the Texas Land & Cattle Company, one of the defendants herein and as follows: That said L. A. Murff is president of the Texas Land & Cattle Company and that the said E. H. Murff is secretary and treasurer of the Texas Land & Cattle Company; said parties are made parties defendant in their individual and official capacities.

"Wherefore, plaintiff prays as he has heretofore done and that citation do issue upon L. A. Murff and E. H. Murff, requiring him to appear and answer herein, and upon final hearing hereof, that the plaintiff have and recover of and from said defendants his judgment as prayed for in his original petition for costs of suit and for general and special relief."

Exceptions, pleas of privilege, denials, answers, etc., and a sworn denial of partnership constituted plaintiffs in error's defenses.

The cause was tried without a jury, and the court made its findings which are embraced in the decree overruling all demurrers and pleas. The findings are not challenged, but seem satisfactorily to both parties. Defendant in error dismissed as to L. A. Murff and E. H. Murff, and all the other defendants were by the decree of the court dismissed from the suit, whereupon the court entered its judgment in favor of defendant in error against the Texas Land & Cattle Company and Oscar Eckert individually, for $7,586.06, being amount of principal, interest, and attorney's fees, and further adjudged that the amount be first recovered from the Texas Land & Cattle Company, upon the theory of a partnership liability. It is not necessary for us to pass upon the question here as to the character and legal effect of the association or its members, designated a common-law trust, to its creditors,...