W. F. Stewart & Co. v. Gordon

• Decision Date: 26 January 1886
• Docket Number: Case No. 2071
• Citation: 65 Tex. 344
• Court: Texas Supreme Court
• Parties: W. F. STEWART & CO. v. JNO. GORDON.

65 Tex. 344

W. F. STEWART & CO.

v.JNO. GORDON.

Case No. 2071

Supreme Court of Texas.

Jan. 26, 1886.

ERROR from Orange. Tried below before the Hon. Stephen Chenault, special judge.

On July 12, 1882, John Gordon, the appellee, instituted this suit, in the district court of Orange county, against W. F. Stewart & Co. and J. A. Bell, to recover $600 for services rendered, and the further sum of $5,000 as damages for malicious prosecution.

The original petition alleged that, on July 31, 1880, W. F. Stewart, H. Beissner and C. H. Moore, citizens of Galveston county, engaged in business, in the county of Orange, as manufacturers and dealers in lumber, under the firm name of W. F. Stewart & Co., and J. A. Bell, a citizen of Orange county, employed plaintiff, who was at the time engaged in rafting lumber and logs on the Sabine river, to run some six thousand one hundred and thirty-seven pine logs, then lying and floating in Pruitt's lake, about twenty-five miles above the town of Orange, down the river, and place them in the Phœnix mill-boom and the Norris mill-boom, on the west side of the river, near the town, agreeing to pay plaintiff therefor the sum of $600, as soon as the timber was delivered. The petition alleged a compliance, on the part of the plaintiff, with the contract, and a breach thereof, on the part of the defendants. The petition also contains a count for malicious prosecution of the plaintiff by the defendants, in the criminal courts of Orange county, in which the damages are laid at $5,000.

Defendants Stewart, Beissner and Moore, pleaded to the jurisdiction of the court that they were, at the time of the institution of this suit, and of the filing of their answer, domiciled in the county of Galveston, and had been so domiciled for many years prior thereto; denied that they had contracted, in writing, to perform any obligation in Orange county, and negatived every other fact whereby jurisdiction might have been acquired under the exceptions in the statute. They also negatived the fact that their association, under the name of W. F. Stewart & Co., was other than that of partners, and averred that their co-defendant Bell, who was a resident of Orange county, was no party to the contract declared on, but that he had been made a party defendant for the fraudulent purpose of conferring jurisdiction on the court. They also pleaded a misjoinder of actions, general denial, and specially answering, admitted a verbal contract made by them with plaintiff, on July 31, 1880, by the terms of which plaintiff was to take charge of some six thousand logs, the property of W. F. Stewart & Co., and raft them down the Sabine river into the two booms mentioned in the petition, for which services they were to pay him $600, when performed. They also alleged, that, on the same day, plaintiff took charge of the logs, but instead of delivering them as stipulated, he, the plaintiff, ran many of them into other booms, and fraudulently defaced the brands on a large number, deposited them in a place known as Old River, and afterwards converted them to his own use, for which they pleaded in set-off a claim of $750.

Defendant J. A. Bell, on April 22, 1884, filed a separate answer, in which he pleaded a misjoinder of himself and W. F. Stewart & Co., asserted that he was not a member of that firm, was no party to the contract between the plaintiff and his co-defendants, and had no interest in the subject-matter thereof.

On April 29, 1884, plaintiff filed exceptions to the pleas to the jurisdiction of the court, which were sustained.

It appears, from the uncontradicted testimony in the case, that W. F. Stewart, H. Beissner and C. H. Moore, who composed the firm of W. F. Stewart & Co., were, each of them, before and at the time of the commencement of the suit, domiciled in Galveston county, and had continuously since then been residents of that county; that they were engaged, as a firm, in the lumber business at the city of Galveston, with an agency at Orange; that their association was nothing more than a partnership; that their contract with the plaintiff was an oral contract; and that their co-defendant, J. A. Bell, was no party to that contract, was not a member of the firm of W. F. Stewart & Co., but was simply their agent at the town of Orange, in Orange county. There was no evidence to sustain the charge of malicious prosecution.

On the trial of the cause, which was without a jury, the court overruled defendants' pleas of misjoinder and amended pleas to the jurisdiction, and rendered, as to the defendant J. A. Bell, a judgment of nil capiat, and, as to the defendants W. F. Stewart & Co., a judgment in favor of the plaintiff for the sum of $21.90, with interest from August 10, 1880. To the judgment against them W. F. Stewart & Co. excepted,...