Waggoner v. Edwards

• Decision Date: 06 May 1935
• Docket Number: No. 4413.,4413.
• Parties: WAGGONER et al. v. EDWARDS et al.
• Court: Texas Court of Appeals

83 S.W.2d 386

WAGGONER et al. v. EDWARDS et al.

No. 4413.

Court of Civil Appeals of Texas. Amarillo.

May 6, 1935.

Rehearing Denied June 3, 1935.

Appeal from District Court, Lamb County; Charles Clements, Judge.

Action by J. Arthur Edwards and others against W. T. Waggoner and others. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

See, also, 68 S.W.(2d) 655.

Seth Barwise, Thompson & Barwise and Hiner & Pannill, all of Fort Worth, and R. C. Gwilliam, of Tulsa, Okl., for appellants.

C. D. Russell, of Plainview, for appellees.

JACKSON, Justice.

The record discloses that appellees, by an amended petition, sought to recover against W. T. Waggoner, E. A. Compton, and A. B. Wharton, Jr., as directors and trustees of the original lessee, the Three D's Products Distributors, Inc., damages which they allege were occasioned by breach of a certain rental contract, a copy of which was attached to and made a part of their petition. They also sued the Marathon Oil Company, Inc., for the breach of said contract, as assignee of said original lessee, a copy of which assignment was attached to and made a part of their petition.

Waggoner, Compton, and Wharton denied personal responsibility, asserted that if any liability existed it was limited to the assets of the Three D's Products Distributors, Inc., a dissolved corporation, that came into their possession as trustees; pleaded the assignment to the Marathon Oil Company, and asked judgment against it for any sum that might be decreed against them as trustees.

The Marathon Oil Company answered by general denial, pleaded that as assignee it assumed none of the obligations of the original lessee; that it paid the rental according to the lease contract so long as it occupied the premises; that on July 27, 1932, it transferred all its right and interest in the leasehold to T. D. Farley, who took possession; that it subsequently asserted no claim thereto and was not liable after such transfer for any rent accruing under the lease contract. A more extended statement, including excerpts from the lease contract and the assignment, will be found in the opinion of this court on a former appeal, sustaining the action of the trial court in overruling the pleas of privilege of these appellants. Waggoner v. Edwards, 68 S.W.(2d) 655.

The case was tried without the intervention of a jury and judgment rendered that appellees recover from the trustees and from the Marathon Oil Company the sum of $5,750.37, together with costs, and that the trustees recover from the Marathon Oil Company any and all sums of money which they might be compelled to pay by virtue of any judgment obtained against them by appellees.

There is no statement of facts in the record. The court filed findings of fact, the substance of which necessary to a disposition of this appeal are: That on May 28, 1930, the appellees, as lessors, entered into a written contract with the Three D's Products Distributors, Inc., as lessee, by the terms of which lessors let to lessee the premises here involved for a period of five years for a consideration of $250 per month, payable in advance. That said lessee occupied the premises and paid the monthly rental until December 4, 1930. That the Three D's Products Distributors, Inc., had been dissolved but had sufficient assets, which passed into the hands of the trustees, to pay all its obligations, including this judgment. That on said last-named date lessee assigned its interest in the premises to the Marathon Oil Company. That said assignee assumed none of the obligations of the lessee, but used and occupied the premises until July 27, 1932. On that date said assignee transferred and assigned its interest in the premises to T. D. Farley, who, on August 1st thereafter, took possession thereof. That T. D. Farley occupied and used the premises under such assignment "until the same was cancelled by the plaintiff thereafter on the 20th day of March, 1933. * * * That during the time the said Marathon Oil Company held possession of said premises, and until the execution and delivery of said assignment, it paid all the rentals...