136 S.W. 105 | Tex. App. | 1911
The first assignment of error complains of the court's sustaining the general demurrer of the San Antonio Company and the individual defendants to plaintiff's petition.
The propositions asserted under the assignment are:
"(1) The San Antonio Northwestern Telephone Company, being a party to a contract involved in this suit, is a necessary and proper party defendant for the purpose of being bound by the decree of the court, and that it is true even if it is not liable for any wrongful acts or deceit of its president and general manager, and the damages arising by reason thereof.
"(2) Where a person assumes or exercises control and dominion over the property of another person against his will and to his exclusion, he is liable for its value at the time and place of so doing; in other words, the same constitutes a conversion for which all persons so acting and participating are liable to the owner for its market value at the time and place of the conversion.
"(3) Conspiracy between officers of corporation to defraud binds the corporation as well as the officers individually for actual and exemplary damages.
"(4) A person may recover damages resulting from deceit, fraudulent representations, and false statements, if relied upon by him in good faith, and all persons or corporations making or practicing fraudulent conduct and sharing profits or participating therein are liable, and that, too, whether originally guilty thereof or subsequently joining therein."
Before considering these propositions seriatim, we must confess we have found some difficulty in determining from his petition exactly what legal or equitable rights plaintiff expects to obtain or enforce by this action. Nor can we now, after reading and considering the pleading as best we can in the light of such knowledge as we possess of law and equity, console our minds with the unction that we have overcome the difficulty so as to make clear to other minds what was so obscure to ours. But we shall not attempt to epitomize the petition, though we may observe that it might have, had the rules of good pleading been heeded, been more brief, and then brevity would have been the best part of it, for it would have been self-evident that, though plaintiff wanted much, he was entitled to nothing.
(1) It is not made in the least to appear from the petition that the San Antonio Company has withheld from or infringed upon any right of the plaintiff or has conspired with or aided any of its codefendants in so doing. On the contrary, it has only performed a contract that it made with the Bandera Company, and endeavored to perform its part of one it made as an incident to the first, with the plaintiff, of which he has wholly failed and refuses to carry out his part. It may be that the San Antonio Company had a right of action against plaintiff to compel him to perform his part of such contract, which it could have set up by a cross-bill, and for that reason may be regarded as a proper party to the suit, but this would furnish plaintiff no ground of complaint on account of the court's sustaining its general demurrer to his petition which did not disclose a semblance of a cause of action as against such company.
(2) The second proposition is a mere abstraction foreign to any issue in this case. That no dominion, control, or appropriation of any property has been assumed by any of defendants is apparent from plaintiff's own showing. His allegation that it has been is a mere conclusion of the pleader, which does not follow from, but is contradicted by, the facts alleged. All he had was his shares of stock in and his debt against the Bandera Company. If the value of the stock has been impaired, so has the stock of all other stockholders, as an incident to the management of its affairs by its board of directors. Unless its deterioration was caused by fraudulent, ultra vires acts, or negligent acts of the directors, plaintiff cannot complain, but must shoulder the loss *111
as though it occurred in any other enterprise. If it was brought about by the directors in any of these ways, the corporation was the party to sue, and, unless it fails to do so after being appealed to by an injured stockholder, he has no right to bring suit for the corporation for such a wrong without it is apparent such an application would be ignored and hence unavailing. In this case it is not made to appear that the directors have been guilty of any act or negligence which tended to diminish the value of the company's stock, nor are they sued in their capacity as directors, nor that the company has been applied to by plaintiff to institute suit against them on account of their mismanagement of its affairs. New Birmingham Iron L. Co. v. Blevins,
(3) A mere conspiracy between officers to defraud, unless effective, affords no one a cause of action. If effective, it is only the one injured in consequence who can predicate an action upon it. The injury resulting from such a conspiracy may be to the corporation itself, as well as to others. If, then, as enunciated by the proposition, a corporation be bound by a conspiracy of its officers which results in its injury, who can deliver it from this bond of iniquity? No one can, but it must stand like a lamb dumb before its shearers. Only such wrongs as are done by the officers of a corporation in furtherance of its business affairs which are within the scope, or apparent scope, of its corporate powers can bind it to its detriment And then its liability for such wrongful acts of its officers arises from the principles of agency. But in this case no conspiracy of the officers of defendant corporations is alleged which resulted in an injury to the plaintiff for which either company can be held liable either for actual or exemplary damages. From his own allegations it seems to us that the plaintiff shows himself to blame rather than either of the corporations or any of its officers; for they carried out their contract, while he failed and refuses to perform his, which he declares to be a part of it. If the action were against him for damages, the burden of justifying its breach would rest upon him.
(4) This, as a general proposition, is correct; but there is an absence in plaintiff's petition of such averments as are essential to its applicability to this case. As has been remarked in considering the other propositions, it does not appear from plaintiff's petition that he has suffered any injury by wrongs done him by either of the corporations or any officer or individual connected with or acting in its behalf.
The second assignment of error complains of the court's sustaining the fourth, fifth, sixth, tenth, fourteenth, fifteenth, and seventeenth special exceptions of the defendant Bandera Company to plaintiff's first amended original petition. This is too general to require consideration. Scott v. De Witt, 93 S.W. 216; City of San Antonio v. Alamo Nat. Bank,
The first proposition under the third assignment is not germane to and cannot be evolved from it; and, if the assignment can of and in itself be considered as a proposition, it has been anticipated and disposed of in what we have said in considering the propositions under the first.
As nothing was alleged in plaintiff's petition tending to show that he was entitled to recover either actual or exemplary damages, the court did not err in sustaining the seventh special exception to plaintiff's petition. We therefore overrule appellant's fourth assignment, which complains that the trial court erred in sustaining the seventh special exception of the Bandera Company to his petition for the reason that the part thereby excepted to went to the motive and intent of the parties, and was alleged by way of inducement and aggravation, which was proper as a predicate for exemplary damages.
There was no error in the court's sustaining the eleventh special exception of the Bandera Company to plaintiff's petition, for an action ex contractu cannot be joined with an action ex delicto, unless the latter grows out of or arises from the former. Frey v. Ft. Worth
R. G. Ry. Co.,
What we have said in disposing of the preceding assignments disposes of the remaining ones adversely to appellant and relieves us from giving them specific consideration.
There is no error in the judgment, and it is affirmed.