Thompson v. Texas Land & Cattle Co.

• Decision Date: 20 December 1893
• Parties: THOMPSON v. TEXAS LAND & CATTLE CO., Limited.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 856

24 S.W. 856

THOMPSON v. TEXAS LAND & CATTLE CO., Limited.¹

Court of Civil Appeals of Texas.

December 20, 1893.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by G. A. Thompson against the Texas Land & Cattle Company, Limited. A demurrer to the petition was sustained, and plaintiff appeals. Affirmed.

McLeary & Fleming, for appellant. Ogden & Harwood, for appellee.

FLY, J.

On July 1, 1890, appellant filed suit in the district court, complaining that the Texas Land & Cattle Company, Limited, a foreign corporation doing business in the state of Texas, and of which A. H. Moncur, a resident of Dundee, Scotland, is president, John Tod, a resident of Nueces county, state of Texas, is manager, and James Anderson, a resident of Bexar county, state of Texas, is accountant, and W. S. Robertson, a resident of Dundee, Scotland, is secretary, had made and entered into with appellant the following contract, to wit: "Kansas City, Mo., Oct. 20, 1885. Agreement between G. A. Thompson and Edwin E. Wilson, Manager. Thompson is to take to pasture for said Wilson on his pasture in the Cherokee strip during the winter of 1885 and 1886 four thousand head of cattle, the same to be delivered on said pasture by said Wilson, and to be taken away by him at the first of May, 1886, or as soon as the grass is fairly good and eatable. Said cattle to be cared for and looked after by Thompson during the winter, and to have such care and attention as is usual. Wilson is to pay for the same at the rate of fifty cents per head for the season aforesaid. [Signed] Edwin E. Wilson. G. A. Thompson." It was further averred that under this contract appellant pastured 4,000 cattle in his pasture in the Cherokee strip, in the Indian Territory, from the 1st day of November, 1885, to the 1st day of May, 1886; that appellee, by reason of the premises, became liable and promised to pay appellant the sum of $2,000, but had only paid $600 on the same. In order to take the contract aforesaid out of the bar of the statute of limitation of four years the following letter was pleaded, to wit: "Kansas City, Mo., July 7th, 1886. G. A. Thompson, Esq., Caldwell, Kansas — Dear Sir: I have your favor of the 2nd of July, and inclose you herewith our check No. 1,486 on the Merchants' National Bank of this city for $600 in payment of my account. I would have attended to this before, but absence from the city prevented. As near as we could get at it, we drove from the pasture about 1,200 head of cattle, but if you think that the above amount is not sufficient I will make the matter all right when next I see you. Please sign and return to me the inclosed voucher. Very truly yours, Edwin E. Wilson."

Appellee demurred to appellant's petition on the ground that the petition showed on its face that the cause of action was barred by the statute of limitation of four years. It is alleged in the petition that E. E. Wilson, the manager and agent of appellee, put the cattle in the pasture, and signed the contract and wrote the letter that are pleaded in the petition. Appellant, by way of replication to appellee's exceptions and answer, pleaded: (1) That the defendant is a foreign corporation, and cannot plead the statute of limitation within this state. (2) The defendant is not a person within the meaning of our statutes of limitation. (3) That since the accrual of said cause of action the said defendant has been without the limits of this state and of the United States. (4) The defendant waived the statute of limitation by requesting the plaintiff not to bring suit on the claim, which request was granted by plaintiff, and it would now be a fraud on the plaintiff's rights to allow the defendant to plead the statute of limitation. The trial judge sustained the special exception of appellee, and appellant perfected his appeal to this court.

The several assignments of error embody the ideas advanced in the replication heretofore set out. It is alleged in the original petition that appellee was a foreign corporation, doing business in Texas, and that its manager and accountant both reside in the state of Texas. We presume the corporation was doing business according to law. It has been held that a corporation is a citizen of the state under whose laws it is created, and consequently appellee was a citizen of Scotland during the time that limitation is claimed to have been running. A corporation can only be present in any locality, outside of that in which it is created, by and through its agents and officers; and the facts that it was doing business in Texas, and had two officers who were resident citizens of the state, and that service could be and was obtained on it, show that, whether a citizen or not, appellee was a foreigner, resident in the state of Texas, and was residing here at the time of the filing of the suit. The presumption would be, in the absence of an allegation to the contrary, that the foreign corporation doing business in Texas was conducting it under the laws of the state. This is tacitly admitted to be true by appellant, but the position is taken in the first proposition under the first assignment of error that "a foreign corporation is conclusively presumed to be a resident of the sovereignty that created it, and, as the defendant in this case is a foreign corporation, it was therefore out of the limits of the state at the time appellant's cause of action accrued, and has remained without the state ever since, and cannot plead the statutes of limitations as a defense to appellant's suit." We have not had access to, nor does appellant cite, (although citing many,) any decision, statute, or text-book holding that a foreign corporation is presumed to be a resident of the sovereignty that created it. There are many decisions holding that a corporation is a citizen, not resident, of the commonwealth creating it; but there is quite a marked difference between residence and citizenship, and they...