Witt v. Wilson

• Decision Date: 22 October 1913
• Citation: 160 S.W. 309
• Parties: WITT et al. v. WILSON.
• Court: Texas Court of Appeals

160 S.W. 309

WITT et al. v. WILSON.

Court of Civil Appeals of Texas. Austin.

October 22, 1913.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Action by E. M. Wilson against E. E. Witt and J. M. Witt and another. From a judgment for plaintiff, defendants Witt appeal. Reversed and rendered.

Marshall Surratt, of Waco, J. B. Durrett, of Belton, and Witt & Saunders, of Waco, for appellants. Stanton Allen, of Bartlett, for appellee.

RICE, J.

The same being virtually concurred in by appellee, we copy the statement of the nature and result of the suit from appellants' brief, which shows that it was brought by appellee against appellants E. E. and J. M. Witt and W. J. Harlan, on a promissory note executed by them to appellee May 1, 1910, payable on or before January 1, 1911, for the sum of $1,016.40. Harlan made no defense, and judgment went against him by default, but the Witts, who alone appealed, answered by general demurrer, general denial, and by special plea, alleging under oath that said note was executed by them without consideration; that it was given to appellee for money claimed by him to have been advanced to the Mexico Wax Company, a corporation in which the plaintiff and defendants in said suit were stockholders; that no part of said money was received by appellants or either of them; but that the same was paid, if at all, to said company and its creditors by appellee of his own accord prior to the execution of said note, and without any request on the part of appellants or either of them, and without promise by them or either of them to reimburse him, and that appellants thereafter, and without any consideration passing to them, at the request of appellee executed said note. Appellants further specifically answered that, if said note is not wholly without consideration, it is partially so, in that if it should be held that the advancement of said money by appellee to said corporation, in which both appellants and appellee were stockholders, would constitute any consideration for the subsequent execution of said note by appellants to appellee to reimburse him for such advancement, then their liability was in proportion to the respective amounts of stock held by them in said company. Appellants further pleaded an express agreement that they should be held on said note only in proportion to their respective stock holdings, the amount of which was stated in said plea. Appellee in his second supplemental petition, among other things, alleged that the note sued on was given for money advanced by the plaintiff to the corporation and used for its benefit; that said money was so advanced by him before the execution of said note; that there was never at any time any agreement or contract, either verbal or in writing, between himself and appellants, in which it was agreed that the signers of said note should only be liable thereon in proportion to their holdings of stock in said company, but made no claim that appellants at any time made any request that he advance said money, or any agreement to repay said money, other than the mere execution of the note sued on; and specially alleged that said note actually expressed the only agreement had between plaintiff and defendants with regard to the debt thereby evidenced. The only issue submitted by the court to the jury was as to whether or not there was any express agreement between appellee and appellants to the effect that they should only be liable for their proportional part of the note, and declined to sustain their plea of want of consideration, or to submit such issue to the jury. There was a verdict for appellee for the amount of said note, upon which judgment was duly entered, and appellants prosecute this appeal, contending that the court erred in failing to peremptorily charge the jury to return a verdict in their behalf, and in refusing to give their special instruction to this effect.

The Mexico Wax Company was a corporation, chartered in 1909, with a capital stock of 2,000 shares of the par value of $20,000. This company was an organized and officered corporation, and was managed by its duly elected officers, principally by E. M. Wilson, appellee. He was treasurer or acting treasurer all the while, and owned 674 shares of stock therein, J. M. Witt owning 74½ shares and E. E. Witt 42 shares, while Harlan, the cosigner on said note, owned 307 shares. Appellee in his second supplemental petition admitted that the note sued on was given for money advanced by him to the company and its creditors for the benefit of said company, and that the money was advanced before the execution of the note, and that it expressed the only agreement between the parties in relation thereto. He testified on the trial that the consideration in the note was money paid by him to said company and its creditors for its benefit; that such payments were made in settlement of drafts and bills, sent, in most instances, to the Bartlett Bank for collection, but perhaps some of the money was sent direct to the company's offices in Mexico; that the money was paid to the company for its sole use, and that at the time the amounts were furnished he was either treasurer, or acting as such; and that there were no funds in the treasury belonging to the company, and when these bills and amounts were needed he furnished it out of his own personal funds, and that the note sued on was for the amount he had furnished up to the time of its execution, stating that he had balanced his account with the company on said date, and found that they owed him $1,016.40, the amount of said note.

The uncontradicted evidence by appellants showed that there was no promise made by either of them to repay the money for which the note was given before it was advanced by the payee to the company, and that there was no release of said company, but it was still looked to for payment, and there was nothing moving to them or either of them for the execution of the note, either prior to or at...