Tobin Canning Co. v. Fraser.

• Decision Date: 16 June 1891
• Citation: 17 S.W. 25
• Parties: TOBIN CANNING CO. <I>et al.</I> v. FRASER.
• Court: Texas Supreme Court

17 S.W. 25

TOBIN CANNING CO. et al. v. FRASER.

Supreme Court of Texas.

June 16, 1891.

Commissioners' decision. Section B. Appeal from district court, Bexar county; GEORGE H. NOONAN, Judge.

Henry E. Vernor and John H. James, for appellants. Wm. Aubrey, for appellee.

FISHER, J.

Appellee instituted this suit January 31, 1887, against the Tobin Canning Company, as the maker of a certain promissory note for $1,000, dated September 27, 1884, with 12 per cent. interest, payable to appellee 30 days after date, and providing for 10 per cent. as attorney's fees for collection; and also against I. P. Simpson, J. B. Lacoste, C. Upson, and J. S. Thornton, as guarantors by the following promise in writing, indorsed on said note: "We, the undersigned, agree to guaranty and become responsible on the within note to the extent of eight hundred dollars," signed by the above defendants. The Tobin Canning Company is a corporation created under the laws of this state. Its objects and purposes are to prepare and preserve chili con carne and meats and fruits in cans, etc. The defendants, by their answers, presented the following defenses: The defendants excepted to plaintiff's petition on the following grounds: (1) That plaintiff did not institute suit against the maker of the note sued on before the first or second term of the district court, to which suit could have been brought after plaintiff's alleged cause of action accrued, nor show any cause why such suit was not so instituted. (2) That the suit was not instituted until more than two years, and not until nine terms of the district court of said Bexar county had been duly and regularly held, after the accrual of said cause of action, without showing any cause therefor, and that thereby plaintiff has been guilty of such want of due diligence and gross laches as to relieve defendants from all liability as guarantors or otherwise on said note. (3) That it does not appear from plaintiff's petition that any demand was made for the payment of said note within a reasonable time, or that any notice was given of the non-payment of the same. And for general exceptions defendants say that plaintiff's petition states no cause of action against them. Which exceptions were overruled by the court, and the defendants duly excepted thereto. March 11, 1887, the defendant Tobin Canning Company of San Antonio filed its plea in abatement, to the effect that there was a misnomer in plaintiff's petition in suing, and in styling the corporate name of this defendant as "The Tobin Canning Company," when its corporate name was the "Tobin Canning Company of San Antonio." This defendant also in its answer pleaded non est factum as to the note sued on, and made affidavit thereto by its president, M. C. Shiner. All of the defendants in their answers alleged that at the time and long after the note sued on became due and payable the said company claimed by the plaintiff to be maker thereof was perfectly solvent, and had property in said Bexar county free of incumbrance, and subject to execution, ample and much more than sufficient to pay and satisfy all of its indebtedness, out of which said plaintiff, by the exercise of due diligence, might have collected and realized the full amount of said note, all of which plaintiff well knew; that on or about the 29th of July, 1885, when said company was so solvent, the plaintiff, then being the treasurer, a director, and a stockholder of said company, wrongfully and willfully caused property of the value of at least $5,000 of said company to be sold, bid in by himself, and unnecessarily sacrificed for the grossly inadequate sum of about $160; that he wrongfully disposed of said property, and converted the proceeds thereof to his own use, in disregard of his promise and obligation to bid in and hold said property for the use and benefit of all the stockholders of said company; that afterwards said plaintiff wrongfully took and converted to his own use the building belonging to said company, of the value of $1,000 or more; that, by reason of the wrongful acts of plaintiff aforesaid, said company was rendered and is insolvent; that the property of said company so taken and converted by plaintiff was an offset to and a full extinguishment of said note. The defendants also alleged that said note had been fully paid and satisfied by the chili con carne of said company, and the proceeds thereof received by plaintiff. The defendant Tobin Canning Company of San Antonio specially answered that, if it is in any manner liable upon said note, which is denied, the same arises from money loaned to carry on its business of manufacturing chili con carne; but, by reason of the wrongful appropriation of its property as aforesaid, plaintiff deprived said company of the means necessary to carry on said business, to its damage of $5,000. Said company also pleaded the value of said property so appropriated by plaintiff, viz., $5,000, in reconvention, less the $160 paid by plaintiff in the purchase of the same, and prayed judgment therefor. All of the defendants pleaded a general denial. The defendants I. P. Simpson, J. B. Lacoste, C. Upson, and J. S. Thornton, complained of as guarantors on said note, each specially answered that they signed said guaranty upon an express agreement and condition made with each of them by said plaintiff, at and before the signing of said guaranty, that they or either of them were not to be bound by the same unless the plaintiff also procured the signatures thereto of all the other stockholders of said company, to-wit, Augustus Belknap, M. C. Shiner, and T. M. McDaniel, each of whom was solvent and amply able to pay the full amount of said note, which said signatures of said other stockholders plaintiff wholly failed to procure, whereby these defendants were not liable on said guaranty. Said defendants, guarantors, also specially answered by alleging that said guaranty was a new contract without consideration, made subsequent to and independent of said note, and of no benefit to them, or any of them, and each pleaded non est factum thereto, and verified the same by their respective affidavits. Said defendants, guarantors, also answered that they notified and requested plaintiff to institute suit on said note against said company when the same became due and payable, and while said company was solvent as aforesaid, but plaintiff failed and refused to bring such suit until more than two years thereafter, and after nine terms of said district court had been duly and regularly held, and after said company had become insolvent; and the said guarantors, defendants, claimed thereby that the plaintiff had been guilty of gross laches, and that, by reason thereof and the wrongful acts aforesaid of plaintiff, they were discharged from all liability on said guaranty. The defendants I. P. Simpson, J. B. Lacoste, and C. Upson further specially answered, alleging that long after said note became due and payable, and after the signing of said guaranty, said plaintiff drew a new note in place of and altering the terms of said guaranty in amount and time of payment, which...