172 S.W. 1106 | Tex. | 1915
This is a proceeding for a writ of mandamus to require the judges of the Honorable Court of Civil Appeals for the Second District to *550
certify for the decision of this court a question determined by them in the case of W.C. Bowman Lumber Company v. Pierson et al., adversely to the relator, an appellee in the case.
The jurisdiction of the Court of Civil Appeals was final in the case, it having been appealed from a County Court and not being within any of the exceptions of the statute providing that the jurisdiction of the Courts of Civil Appeals shall be final in such cases; and the motion to certify the question having been duly made upon the ground that the decision was in conflict with that of another Court of Civil Appeals, it was the duty of the court to certify it, provided there was a clearly defined conflict between the two decisions. Act of May 9, 1899 (Laws of 1899, 170), art. 1623, Rev. Stats., 1911; McCurdy v. Conner,
The question determined by the Court of Civil Appeals was, that the lumber company, a corporation chartered for the purpose of buying and selling lumber and other building material, was not liable on its undertaking as a surety upon the bond of Robinson, a building contractor, executed in favor of the relator to secure the performance of a building contract, because its act in signing the bond was ultra vires and void. The decision is claimed to be in conflict with the holding of the Court of Civil Appeals for the Fourth District upon the same question in Munoz v. Brassel,
For the same reason, if that decision is correct, becoming a surety upon a building contractor's bond is not violative of the charter powers of a corporation engaged in the sale of building material. It would be deemed, according to such ruling, equally an act promotive of the business of the corporation.
The two decisions are in evident conflict, and the writ of mandamus is accordingly awarded. *551