Wrather v. Parks
| Decision Date | 12 January 1921 |
| Docket Number | (No. 1739.) |
| Citation | 227 S.W. 513 |
| Parties | WRATHER et al. v. PARKS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
Suit by L. P. Parks against J. D. Wrather and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Kimbrough, Underwood, Jackson & Simpson, of Amarillo, for appellants.
C. E. Gustavus, of Amarillo, for appellee.
The appellee, Parks, sued J. D. Wrather, J. R. Wrather, and W. M. Rice on a promissory note for $5,000, bearing interest at the rate of 8 per cent., and providing for 10 per cent. attorney's fees, alleging a credit on the note of $3,000 as of date April 3, 1918. The note bears date March 15, 1918. There was also indorsed on the note the following:
It is alleged substantially in the original petition that this indorsement was made by J. D. Wrather on the note without the knowledge or consent of L. P. Parks, and was fraudulently so indorsed for the purpose and design of trying to make it appear the note was fully discharged, etc. The defendants answered by general denial, and specially that they had made full payment and settlement of the note, and that on the 3d of April, 1918, they paid to the appellee $3,000 cash, and at the same place and about a week later paid and discharged the remainder of the note by transferring and agreeing to transfer to appellee an undivided interest in certain mining property situated near Webb City, Mo., upon which they had acquired and then held a lease in the name of appellants W. M. Rice and J. D. Wrather; that they agreed that Parks should have an interest in the mining property and lease to the extent of $2,000, and that this understanding existed at the time the note sued on was executed by appellants, and that such agreement so indorsed on the note was entered in the presence of Parks and his wife. They further allege that subsequent thereto a corporation was organized in the state of Colorado, incorporating the Amarillo Lead & Zinc Company, for the purpose of taking over, controlling, and operating the lease of the mining company, and that after the charter was obtained, and the company organized, Parks, as part owner, claimed the right to be chosen as one of the directors, and it was agreed that he should receive a certificate of stock in said corporation for the amount of $2,000, in consideration of his interest in said property. They allege substantially that the certificate was issued and delivered to Parks and held by him.
The appellee replied by supplemental petition, denying that he agreed to take an interest in the Webb City proposition, and that if any transfer of interest therein was ever made to him it was without his knowledge or consent. He pleaded that any lease of such mining property held by Rice and Wrather was nonassignable, and that an interest therein could not be assigned to the appellee; also denied any connection with securing a charter from the state of Colorado for the Amarillo Lead & Zinc Company; and denied that he was ever a director in the corporation, and that the using of his name was without his knowledge or consent. He also alleged that the incorporating of said company was a fraudulent scheme and device, and that the company never held or owned any lease or any mining property or had any assets or property of any character; that any stock in said company ever issued to him was without his knowledge and consent and never delivered. He alleged that, at the instance of J. D. Wrather, he attended some meetings, looking to the organization of the company, with R. B. Masterson, as president, in which H. W. Galbraith, W. E. Herring, and other prominent citizens of Amarillo would be interested, and that he did contemplate taking an interest in such company, but did not invest any money in the project, and the organization of any such contemplated company was never effected; that if there was any transfer or assignment in the lease by W. M. Rice and J. D. Wrather, or if any stock was issued to him in a company organized in Colorado, that it was without his knowledge or consent, and was an artifice, scheme, and conspiracy with an indorsement on his note by J. D. Wrather, including an inducement by said Wrather to attend meetings to fraudulently deprive him of the collection of the balance of his note. He alleges that the lease of mining property in Webb City, Mo., was of no value, and any agreement to take an interest therein was without consideration; that the property was represented as being very valuable, producing large revenues, and in fact that the mine could only be operated at a heavy loss. He alleges that the contract, if any made, was wholly without any consideration.
The record shows that there was a lease of some 70 acres of land near Webb City, Mo., for mining purposes, executed originally by the Osceola Lead & Zinc Mining Company and A. D. Hatton to one R. M. Clark. This lease also let with the land the mining plant, containing mills, mining machinery, and equipment. The lease further contained a provision that the rights and provisions herein granted to the lessee shall not be assigned or transferred to any other person or persons, firm or corporation, without the written consent of the parties of the first part (meaning lessors) had and obtained. Neither should the lessees sublet any of the land nor grant any rights and provisions without the consent in writing of the first parties, without first notifying said first parties of the name of the proposed sublessee or grantee, and of the terms and conditions of the proposed sublease or grant; that any sublease or grant made in the covenants of the terms of this lease should be wholly void, and all subleases and grants must be subject to the terms of the lease. This lease contract is dated the 1st day of September, 1917. On the 10th day of March, 1918, R. M. Clark assigned this lease to J. D. Wrather and W. M. Rice, both of Amarillo, and on the same day it is indorsed on the lease that the original lessors consent to the transfer and assignment by Clark, as set out.
The evidence shows that the appellants sought to obtain money for the purpose of operating the mine on the lease; that Mrs. Parks, wife of the appellee. was working in the office of J. D. and Dr. Wrather, who were engaged in the drug business in Amarillo; that she heard the discussion of the matter, and suggested that her husband would obtain some money from an estate in Missouri, and possibly they could get it from him. He did lend them the money, $5,000, for which they executed the note sued on, dated March 18, 1918, due in 90 days. It appears that after the execution of the note J. D. Wrather returned to Webb City, Mo., and wrote a letter to Mrs. Parks, a part of which, in effect, was that he was enthused over the prospect and the proposition that they had at that place, and that they contemplated incorporating for $75,000, and some other matters in connection with that. Apparently he made this proposition to Mrs. Parks:
Mrs. Parks dated her letter and answer March 18, 1918:
On April 3, 1918, the appellee, who was working at that time for the Avery Company, and says that he was in his working clothes, and that his hands were dirty and greasy, went into the drug store, and J. D. Wrather then said to him that he had the money to pay on the note and wanted to do so, and stop the interest, and said he could pay $3,000.00, and that he had the note in a pocketbook, and presented it to his wife to make the credit, and that Mr. Wrather took the note himself and wrote the credit; that the reason he did not make the credit himself was because his hands were dirty and greasy; that there was nothing said about taking the stock or an interest in the mine at that time and no mention made of it; that he did not consent for Mr. Wrather to make the notation on the note which we set out in our statement of the pleadings heretofore, and that he knew nothing of his making that notation until after he started out of the house, when he saw the notation was made; that he made no mention of it at that time to Wrather or made no complaint. Mrs. Parks corroborated Mr. Parks in his statement that nothing was said at that time about making the notation and that she did not know that the notation had been made. They both testify positively that they never made any agreement to take an interest in the mine or stock in the corporation. Their testimony is controverted on this point by J. D. Wrather and a Mr. Allen, who was then working in the store, who say it was agreed to make the indorsement, etc. J. D. Wrather, Dr. J. R. Wrather, and Mr. Rice, it appears, employed an attorney in Colorado to secure a charter for an incorporation. The charter was obtained by three citizens of Colorado, Nichols, Taylor, and Wood. The corporation was to be known...
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Long v. City Nat. Bank of Commerce
...their payments and execute notes in accordance with the provisions of the subscription contract. This court held, in Wrather v. Parks (Tex. Civ. App.) 227 S. W. 513, that an issuance to plaintiff of stock in a corporation, formed to take over a mine, which corporation had no money paid in a......