*1 McDonald, 441; ap 43-B point on ruled. appellants’ first As to Tex.Jur. 412, many Practice, Texas 413. years Civil law for peal : believe We it was believe (and do not has we been appeal are Appellants’ points two 86, Rule amendment changed overruled. though the January 1, 1955) that effective controverting affidavit court is af- timely judgment a filing of The trial ordinarily mandatory, so it not firmed. presence agreement to the of waiver or a showing good cause contrary, a 5, plea. Rule sooner failure file Though

T.R.C.P.; 309-315. 43-B Tex.Jur. Corp., Jasper Lumber Bell case of v. might

Tex.Civ.App., 287 S.W.2d contrary, seem hold to the reading first

a point under the facts

we it is not in believe good cause The issue

now before us. KILSBY, Appellant, H. O. plea was controverting filing late of a case, Bell before court not passed the court. Nor EQUIPMENT CO., Inc., AERO-TEST pass on the effect the court called on Appellee. law as we be of Rule T.R.C.P. No. 15212. applied has in a lieve be later it case since the Amendment of decided Appeals Court of Civil Texas. Jan uary 1, went into effect. Norwood v. Dallas. Forster, Tex.Civ.App., 290 S.W.2d and cases there cited. Rehearing April 12, Denied

Under all the circumstances of say

this case cannot trial we that the court appellee in allowing

abused its discretion controverting

to file its second affidavit pre

October 1956. And under the facts record, properly in this

sented the court plea privilege.

overruled Snider’s open

It was admitted in court that

appellant Crandall, following sequestration, replevy possession

filed now has bond and

of the automobile. There is also in evi

dence a title certificate to the showing car Crandall, appellee

title in as a lien clearly

holder. Crandall claims an interest property controversy,

in the so is a

necessary party the suit for debt and Co., v. Grand

foreclosure. Deal Finance

Tex.Civ.App., 228 S.W.2d 984. As we have plea privilege that the

held Snider overruled, properly we must hold that 29a, V.A.C.S., subd.

under art. properly was also over-

plea of Crandall *2 Andress, Jr., Dallas, appellant.

Wm. Golden, Croley, Howell, & Johnson Mizell, and L. Roach, Dallas, ap- John pellee. defendant, YOUNG, Directors of a resolution had Justice. adopted whereby stockholders of the opportunity par- plaintiff seeks By this suit *3 ticipate making required in having by bonds the compensation for as recover corporation indemnity agree bonding capa- in excess its of signers of an one of three 1952, city pay profits and to of the 4, of net aris- a one-third August of ment 40% 40% jobs ing specific from as for profits projects undertaken of two net of the bonds; participation making in the of such Company, on al and based by defendant Upon projects above described had been corporate action to such effect. com- leged pleted, resulting profit nothing judg estimated net a court and take trial the approximately $100,000. defendant findings of of Kilsby for That ment, then moved thereafter the co-indemnitors of law which Howard and conclusions fact and paid objec portion special had been their the filed, general and of making profits Corporation so addi realized the request for but along with tions thereto pay that the had being plaintiff latter refused to findings. The latter motion tional anything, damage $13,- to his in the statutory facts was sum of denied, statement of 333.33; praying ap for an accounting this de- controlling becomes of filed and 600, Swanson, fendant as the true accruing Tex. from peal. 148 Swanson bids, only judgment two successful consequence, inci for his 228 In S.W.2d portion thereof, interest, costs, made to will be hereafter etc. dental reference findings. these court undisputed Though part, considerable By petition alleged amended it was first underlying controversy the salient facts plaintiff, 1952 benefit for next Equipment must be stated. Aero-Test defendant, along of with K. E. Soder and incorporated Company was Howard, Jr., had executed a certain T. W. capital $50,000, with consisting stock form General Indem- standard Contract of stock, paid in, one-half 500 shares of nity favor of the Fire Insur- National payment corporation full balance to Company, ance a member of National year. and same Its Group, thereby holding of Hartford said purpose designing, development was and writing harmless as indemnitee a result of equipment test manufacture of for aircraft performance bonds, certain bid which By-laws corporation accessories. necessary for management bonds were defendant to fur- called for a of ten Directors. precedent initially nish as a condition to its obtain- had subscribed for and been following ing “(a) valuable contracts: Fifty of said issued shares stock and served AF33(600)20709, Air Force Contract No. Company Director until December generator calling for test stands for In course of business defendant was fre- Field, Ohio, provide Wright price required at a quently contract bonds in secur- $102,451.81. (b) for Company, Ford of bids or Motor contracts awarded; bonding Engine Division, pro- often Aircraft contract No. Surety Companies with prerequi- vided 267-1-53, calling for six engineering cells surety indemnities site of price bonds re- $351,454.00.” at a contract He quired. connection on In this alleged further that on basis of said meeting joint 1952 a of stockholders and indemnity, performance contract bonds corporation held; of the Directors were executed on jobs by above two things following among other action Company, plaintiff Insurance obligating taken: potential himself for liability in total specified in projects. amount these “Resolved, that when additional requirements corpora- That thereto on or bonding about joint needed, at a meeting of stockholders and are officers tion should plaintiff); of further testi- Soder and seek outside themselves, mony that, said two agree to as between corporation that for same apply only profit indemnities would the net to exceed Navy S. Office bidding venture for the U. job. specific Undisputedly, Building Daingerfield. bonding re- if the “Resolved, that any of its neither defendant nor exceed quirements should compen- specifically agreed officers capacity, stockholders all of the plaintiff sate dated indem- signing the first be notified should nity contracts, solely he relying on the *4 equally in participate opportunity to 12, resolution of as an June second, required; if bond making the appellee agreement by to him for company bonding such acceptable to executing indemnity August contract of prorated be made on a could a bond 4, 1952. individual with the accordance in basis plaintiff’s plead- projects in described shareholders; third, if bond- sufficient for a ing on which claim is made one-third in be secured capacity could not ing profits in were interest net otherwise known manners, two these of either E-M-2, E-M-6, Wright Job, and as Field corporation is au- management Company. job The former Ford Motor bonding indemnitors to obtain thorized on execution of of bid either above corporation.” outside 4, (June 11 indemnity August contracts and employed by Aero-Test Kilsby had been required, 1952), no'bid bond and awarded prior projects U. for the S. on during. 1952 12, job September 1952. This had not been Texas; Company his Navy Daingerfield, at completed (April, 1956), on date of trial no year, terminating at end of that connection determined, profits exact amount of but interest. He was also stock of inclusive by $20,000. Howard at estimated President Trinity own under name of his operating on Company job in The Ford was bid Decem- par- in and had Builders Engineer required, no bid bond ber awarded as a venture ticipated with defendant defendant; Company the Insurance Navy Building Office con- for a bidding in executing, bond thereafter in on of 50-50 in- basis at tract project completed This its behalf. with secured, if profits two con- in terest $61,123.18; pur- estimated at only. How- furnishing a bid bond cerns profits, of suant to said determination Daingerfield job ever, for this contract Executive Committee of Defendant Board by the Government. awarded was never Directors, by By-laws, of as authorized its 1952, Kilsby, in Howard and Also 10, 1953, taking on December met the fol- general a like executed contract had Soder lowing “The action': indemnitors of the Group Hartford National of in- paid (E-M-6) shall be Ford Motor Job Company Insurance for all demnifying the per cent profit maximum of 16 of the net of Aero-Test, by it behalf of executed bonds $61,123.18.” This rate of following opposite recital their with the. by Howard and reduced Messrs. Soder to indemnity agreement “This names: $7,500; $60,000, paid of subject understanding to the that signed Howard, Damiani on a 'John $25,- will be released when the by basis as determined 50-30-20 finan- on stock subscribed has been balance 000.00 of each of these cial statement indemnitors. in a Dallas bank.” deposited Defendant sign prior indemnity Company did not such In meantime had written to February 3, plain- Howard, complaining of 4 on which or that contract based; capacity impaired point notice had tiff’s suit his testimony indemnity of record be taken to effect of con should reason photostats tract, requesting contract was certain writ said also thus 1953, writing signers (Howard, in March ings; these bond- limited Group), (Wright Hartford company (National Field and ing Jobs) Ford Motor * * * released to be (3) his desire National notice Fire Insurance giving general Company Hartford, contract of said obligations Connecticut, from has became him general as to construed the indemnity, release contract of in- may demnity Here be described paragraph 1 here- effective that, rela- as indemnifying to effect company evidence record for all noted liability by Company Job, the Motor reason to the Ford bonds issued tive accept the refused to two contracts par- described in agraph 2 by plaintiff; (4) hav- hereof. indemnity signed National contract Fire Insurance signatories Hartford, requested additional Con- necticut, Howard, has Soder and refused to supplied terminate liability Kilsby upon H. O. subsequent March gen- Damiani eral contract of Rule Texas Rules pursuant described Also that paragraph 1 Procedure, request hereof until it plaintiff’s is relieved of Civil of all liability on the during course of this bonds of fact admissions connection with the contracts defend- described proceeding was not answered *5 paragraph 2 hereof.” ant; thereby becoming judi- following the trial: cial admissions the From above admissions it is evident that the plain- has construed general contract of “(1) The indem- indemnity tiff’s contract of 1952 Soder, nity K. E. by executed T. W. part security for its bonds Howard, Kilsby, Jr., H. and O. ac- projects the totaling approximately on two 1952, copy knowledged August 4 $750,000; having prior same been furnished has heretofore been furnished to Kilsby’s to formal liability release from defendant and is identified as Plaintiff’s position 1953. Here it is the deposition 2 Exhibit attached to the appellant that defendant’s resolution of Howard, Jr., heretofore taken of T. W. 1952 authorizing to by any was never terminated of the up indemnitors to of net thereof, signers by by written notice by corporation, contracts the obtained con- provided registered mail as in the 11th offer, stituted an signing his of the in- prior paragraph regis- to such thereof demnity agreement an acceptance, thus com- by Kilsby H. tered notice O. to upon. pleting Appellee the contract sued Fire Insurance National alleged on the other hand an understanding February (2) 10 1953. to dated Prior plaintiff, between defendant and co-in- general of the termination the contract demnitors Howard and that in- Soder both in paragraph described indemnity 1 demnity agreements signed were with rela- hereof, National Fire Insurance Com- joint tion to the venture bid on the Dainger- pany Hartford had executed bonds Building project field Office which was not Equipment of Aero-Test (cid:127)on behalf Howard, awarded. President of Aero- Inc., upon Company, following Test, two questions so testified answer to contracts: the Court.1 Judge you to Thornton Howard: “Will didn’t have what it took to make it on why you you own; got feel the court like don’t tell his he on this bond so that any money Kilsby mean, Mr. owe Aero-Test stockholders would feel that he —I only purpose corporation? A. was behind the venture so that we Kilsby signed subject Mr. indemnities were be to too wouldn’t much criticism Trinity Engineer forming Trinity Engineer this Build- Aero-Test —it was Corporation which we had talked Builders-Aero-Test ers about, venture. Trin- get corporation going; ity Engineer money to we Builders no bidding financing bonding; so, satisfy office or build- job Kilsby prepared thought which Mr. stockholders Aero-Test he he on. needed a bond He he be on the bond. I did estimates should not ask holding parol is ad validity decisions evidence consider will first We relationship co to show as between missible agreement between such a collateral

or note; promissory makers or endorsers on a Howard, Soder, Kilsby Com and defendant liability payee of each to that while inadmissibility appellant arguing pany; instrument, determined parol nevertheless as violative all evidence thereof parol any as between themselves evidence ad “efficacy to rule which denies evidence surety missible show that one is for the expressions contemporary or 876; Tex.Jur., p. Clevenger other. 17 siibject-maiter the swine parties relating to Guaranty Bank, Commercial State Tex.Civ. re memorial the written as that to which 65; App., 183 S.W. or v. An as Reeves (Emphasis ours.) McCormick lates.” derson, Tex.Civ.App., 947; Ed., p. Tex. S.W. Ray, Evidence, First admissible, parol holding court rule evidence Obviously familiar p. this Jur., it con any at since related to an or concerning wholly effective would be tract collateral the note and no forming con vary tempt e., part of Anderson’s contract with the cor parties, i. contracting all tract as between poration liability for the stock his Howard, Kilsby one hand on the therefore, validity, Having to the Bank. Group National indemnitee Hartford corollary agreement between indem- challenged evidence But the other. preclude claiming would from nitors parol agreement, not between to the relates any part profits arising the net from company, but indemnitors and completion ap projects; of the two named appellee, obligors inter se said pellant admitting was not otherwise party 4 con which was not *6 compensation promised indemnity for these indemnity. understanding an of Such tract agreements. appear It would thus that thereof and the evidence the three 9, 10, 13, sup findings Court 14 and 22 have of of each agreement effect the has no on testimony. port in record bonding company with the the indemnitors among rights of —merely determinative ifBut be mistaken in the conclusions we appellee. Breed Preston v. themselves and reached, question posed just above is of Ray, 96; love, McCormick Tex. 36 compensation may have to what accrued being pp. 979, not supra, 980. Defendant appellant under defendant’s res- parol admissible thereto, evidence is party 12, 1952, of followed his olution June Howard, Soder and any of indemnity signed contract of concerning ex Kilsby may had with it have involving potential liability bonding indemnity its indicated; behalf. of appel- ecution hereinabove as Portwood, 89 Tex. 34 S.W. contending lee that under resolution on Johnson Ray, 596; p. Clearly relies, corporate profits Kilsby McCormick and net which hand to situation at are those applicable to be calculated on the financial ca- were * ** indemnity bond, get testimony your on the Mm to is I believe that —on get you not ask him it. I did to mean—I asked do that? A. Yes. to “Q. your I the reason don’t feel that That It It wasn’t A. idea? anything. my him Aero-Test owes The not idea. purpose any objection? “Q. you express of that for whole Did job building No, part office I I A. didn’t. was of Aero- nothing maybe case, Test; willing help has to do with this I was to them. only “Q. perfectly willing for that was the reason indem- but it You were A.—- nity agreement.” willing help I was to them. Kilsby already mentioned, “Q. you fifty per had a And As did have a cent your as adventurer interest in the interest A. That is the whole deal own? 50% proposed project Daingerfield. His all I was interested in. testimony “Q. on cross-examination A. all further That was I was in- Sir? relationship the close evidences terested in. indemnity: “Q. your fifty project per to Was cent of you “Q. Kilsby, right.” at the time ex- deal? That Mr. A. agreement August ecuted this indemnitor; the minutes quorum. under recited a pacity of each Defendant had pled statement) his financial (inclusive payment resolution as record authorizing bonding- to possess up little no indemnitors to shown to profits 40% nominal ability more than and financing; and entitled to no had raised ob- no jection kindred compensation. These and other to its introduction in evidence as plaintiff’s briefly. 1; Exhibit matters will be discussed special No. also in a

meeting of stockholders and Directors on Appellant’s appel- (1) claim that 12, 1952, December minutes pay bonding is lee was for this based to 12 meeting ap- 40% read June principally of Sec proved. 27 letter Appellee would appear therefore retary construction of afore Soder whose position in no complain gross irreg- prevail plain said resolution cannot over ularities of Meeting, Board any; if the rec- pay terms resolution incidentally ord bearing out comment profits “not exceed” of net for bond attorney appellant 40% “The it- Court ing. (2) question by its resolution raised, self had labored and determined the offer, merely an au terms was not but an point matter.” His 5 in such connection is corporation thorization for officersof accordingly sustained, that ap- “Neither the bonding indemnity seek and obtain outside pellee corporation nor a participating stock- 40%, etc.; requir and to exceed urge holder can invalidity of the cor- corporate action, appellee further as porate action of 1952, upon which correctly observes, an ripening before into participants, other including appellant, have offer. The Executive Board Meeting acted.” See also 64 A.L.R., Annotations, therefore, December became of pp. 712-724; 13 pp. Am.Jur., 927-928. effect; controlling fixing its Appellee strongly argues that the 50- particular be for the 30-20 division of between indem- ing fully authorized and all binding on nitors other than was due to the indemnitors, prorated to be “in accordance bonding company’s requirement of a new * * * with the capacity individual *7 Howard, contract of indemnity signed by ** the individual shareholders Soder and Damiani March after Questions implicit of fact are in the fore quoted Consistent with judicial above ad- appellant’s going resume of cause action missions that the company had ex- in event of reversal and remand for another ecuted its bond on the Ford trial; being it our conclusion that at this Motor we must Job juncture his accounting suit for and claim after-acquired view this in- as to the Field Wright demnity simply by way of additional se- premature. project is curity. Lastly, opinion in our trial However, grounds earlier discussed findings through court’s 20 and conclu opinion concerning the existence aof law in sion of accordance “No effective corollary agreement appellant action was taken the Board Directors appellee, and as findings reflected in court purported of defendant at such 9, 10, 13, judgment under re- meeting 12, 1952, pay authorizing respects all view is in affirmed. any ment sums for the execution of the indemnity agreements described in items Rehearing. On 8, above”, are not warranted invalidity appellant’s record. The claim of Under citation of Board evidently cases, Meeting on ground (a) e.g., Tolbert v. Standard Accident corporate Co., Tex.Civ.App., stockholders and 218 S.W.2d re Directors had Ins. jointly, Tex., (b) majority grounds, other acted versed on 223 S.W.2d defendant, actually present, although sign- not though Directors was even contracts, was bound ing the two The beneficiary. third-party thereby as applicable therefore rule was

parol evidence Howard, understanding between to an oral them- that, as between plaintiff instru- Company, such and defendant selves limited would be ment trial by the excluded properly job; de- support of In objection. upon

court again however, we judgment, fendant’s admission own plaintiff’s point to in connection nothing promised ex- question; indemnities signing interest furtherance ecuting them Build- Engineer Trinity project, his own infer- eliminated, at least Thereby ers. upon the any reliance ence, was 12, 1952.

resolution as here- is corrected opinion original motion Otherwise indicated.

inabove rehearing overruled. CO., Appellant, AND TRUST BANK

TYLER CO., Appellee. COMMISSION

ATHENS

No. 15280. *8 Appeals Texas.

Court Civil Dallas.