*1 bar, demurrers, pleas ing the testimony, jection proffered final appeal on germane would be but, case; in the view present assignments appeal, on this error, therefore, are LOAN BUILDING & TEXAS
NORTH et al. PYEATT v.
ASS’N
No. Appeals of Texas.
Court of Worth. Fort 4,Oct. Denied Nov. King Bert Dawson, Arch both of Falls,
Wichita for appellant. Watts, Abilene, Weeks,-. Mor-' John J. row & Francis and Henry Penix, all of Falls, Wichita Oliver, E. Bruce appellee Pyeatt. Burgess, Chrestman Brundidge Elliott, L. E. Dallas, all of appellee Massachusetts Bonding & Ins. Co. BROWN, Justice. formerly of Amaril-
lo, Tex., Abilene, Tex., now of one of the appellees here, was the lawful owner of shares stock- appellant, Texas Wichita & Loan Association, of Falls, early an-impostor, one Lela wife of Amarillo, Tex., in- writing, strument in sold and assigned to Compton Co., private corpora- tion, 25 capital shares stock in said Loan& making one Compton attorney H.R. for the purpose *2 20593, 24048, 20542, and’ including all costs of the books transferring the stock on of de- expenses and incurred in counsel fees association. the said any to or for fending claim demand or pre- was written When this void, be loss, obligation shall said then this associa- manager the said of sented to the force and otherwise shall remain in full it transfer upon it to tion and demand made effect.” claimant, association’s the stock it, appel- With before these facts the cer- that the claimant officer advised old stock lant association canceled the produced, or be must tificate and issued ones certificates H._ thereof, a bond and proof made Compton They are now in Co.& Pyeatt, by the said be executed purchaser. hands of an innocent by loss, indemnify December, Mrs. Lela issuing new Late in reason of its Pyeatt, wrote the true owner old lieu her new advising the association address, associa- presented to the The claimant Tex., requested! and application for the bond written tion a at be that dividend checks sent notary pub- and brought from the such address. This Pyeatt, 1932, by July 9, lic, one W. on reply calling association a attention to numbers in which the correct certificate Pyeatt had that Mrs. sold cer- forth, the five describing were set on the and same had been transferred tificates, capital stock in each for copies of the transac- books. Photostat actual- had been association which the said owner, and furnished the real Pyeatt, together ly real Lela brought Building suit & by executed indemnifying bond with the Bonding Company, Loan and Pyeatt principal Lela W. Co., P. & and Dan Com- Insurance Bonding & notary before whom the ap- surety and pany appellee) an (also ecuted the several instruments referred to beneficiary. pellant as prayed for the value of her above. She correctly orig- describes the This bond converted, exemplary thus to Lela certificates issued inal stock att; damages. they or that have been lost recites Building Loan & Association an- at destroyed; the swered, alleging good faith in its acts is- has of Lela W. concerning old, lieu of the new certificates in sued Pyeatt; by it did not know “Now, conditioned as follows: and is practiced the Mrs. the fraud heirs, Pyeatt, exe- then, if said woman, awas married but believed she administrators, and cutors, successors and prayed was the real Mrs. truly at all well and times assigns shall over indemnify, harmless, protect save husband, Roy Comp- R. H. Building Loan Ass’n & North Texas and the Massachusetts Bonding trouble, cost, damage, against all Insurance & sums expense, by reason of loss of these by Pyeatt against covered Mrs. Lela it. if, in case said certificates Bonding Company- answered Mrs.- destroyed, alleged to have been lost or Pyeatt’s petition by general demurrer, aforesaid, possession shall come into the specially excepting because the bond sued of said Lela W. under the control runs in favor executors, heirs, administra- att or and that Association has no tors, successors, assigns, same shall right it, cause or of action against said Massachu- be forthwith delivered to specially excepting allegations to all seek- Bonding and Insurance setts general and a de- nial. cancelled, said Lela W. Loan to pleading We find no executors, heirs, and adminis- urged by harmless, trators, respects save shall in all the cross-action brought indemnify Loan Association .against Ass’n from and it. Loan Building & causi demands, lodged and all .any Ap- and’ the Court of claims peals trouble, expense in on cost, damage, and December 1934—more than nine ago or connected with months arising out of the cause premises, —and .20540, argued September 13, numbered said certificates ef- jury value of the stock fixed supplement fort made to has been what, any- date. We'believe the transcript. not know We do applied pleaded measure of Bonding Company thing, the filed' cross-action answer to the said wholly The evidence is insufficient its codefendant. *3 support any to issue gross negligence jury. tried a The cause was to and of exemplary damages. for a Company’s request The Bonding is, sense, association in a limited Mrs. peremptory against charge as a stockholders, trustee for its and the but granted, att’s claim its it was record discloses that it to failed use or- of the like the claim dinary care plaintiff’s rights the denied. Association was & Loan as its stockholder. But the evidence here The trial court seven does not tend show “that entire want substance, as follows: jury, issues to the in of care which would raise the belief that (1)The of the market value reasonable the act or complained omission of was a stock, per share, 1934. An- January, result of a conscious indifference to the swer, July, (2) market value Such $32. rights or plaintiff. welfare” of the Answer, highest (3) The $29. customarily association did what is July, market value of the stock between done, viz., required proof of the loss of Answer, July, (4) $39. original supposed the The actual of the Mrs. value stock to owner, and a bond from indemnifying her Answer, (5) the att. of the failure Was $100. the association reason of January, to discover in association canceling the old issuing that the of the new brings question us to the signed by not “gross neg- real owner the liability, any, the of the ligence”? Answer, (6) “Yes.” Same Company association, to the on the in- Answer, question as of date demnifying bond. (7) “Yes.” The amount of any. Answer, $2,500. procure association did not the On this awarded verdict court purported bond. It demanded of the the actual stockholder assigns indemnify $800 and her the damages exemplary damages ing proof bond of loss original certificates, before it to the de acceded judg- and awarded the said association upon mand cancel it to the old certificates ment for a like amount Lela W. and issue the in their stead. H. Comp- and R. representations It respect made no Co.; that the also subject-matter to the application in the sworn found nothing against the Bond- association bond, proof notary. loss, and in bond itself. These are only party the Build- appealing is representations tlje supposed owner ing & Loan Association. surety and the bond. undoubtedly It is true that none of The record discloses that the associa- proceedings had disturb the served to just did either tion prior not see Mrs. rights to, of the real owner of the stock as time, or at' the bona fide stockholder. She had two had. compel remedies hand. She could association stockholder association to issue to certificates of in Amaril- name Lela lived appears, as her interest or she could owned, evidenced, lo, books treat the of as conver acts very impostor, certificate of Mrs. property and sue for the value sion Pyeatt, sought to sell have the certificates thus converted. of chose the last-mentioned She assignee. The real transferred to remedy. awas widow. The Mrs. the sale and transfer of The trial court treated the conver bond, application shortly plain sion as of the time after bond, proof of and the includes the tiff discovered stock certificates alone. had been canceled on the books the as surety and the on her in- assignee Her and new certificates issued to a impostor, demnity or should bond saw rights third had asserted done so. stockholder, judgment have and rendered a cross-action, mo- answer con- but such must be the bond We believe us, after a cause granted by tion cannot be assuring the strued as rendered, even Loan Association Pyeatt, though appeal consent stock to who sold the join the motion and in it. lost stock sought have her to her canceled and new certificates assignee, par- expressly “All provides: Rule 22 and in truth was in submission, expected, will ties the old certificates. bona fide owner of see the record that the properly the mere failure prepared, and was in follows that there- omissions inaccuracies observe error in submission, admitted, will not be bond. correcting the record reason for *4 judgment for the the The obtaining rehearing.” Pyeatt, against Associa- Texas North Appellate are confined to courts affirmed. is us manifestly presented, record it is duty parties record to .the judgment awarding The complete see that speaks is both emplary damages sum of $500 duty is the the truth. reversed, said association is incomplete, finds the record judgment here rendered that Mrs. motion, perfect make nothing as- record, is submitted. -exemplary cause way sociation months discover here nine awarding judgment was submit the defects before the cause recovery Association a Building & Loan App.) Breigh (Tex. Civ. ted. Ballard v. $1,300 891; 886, rehearing page S. 262 W. "Compton 620, Pierce, 107 Tex. 183 S. W. Patrick v. corporation, so as to award is reformed judgment against such overruled, is for certiorari $800, The motion with 6 parties in the sum of named per cent, rehearing is likewise 29, 1934, and the motion for January reformed is judgment Building & Loan Association Bonding Insur- reversed, corporation, is ance judgment here rendered that as- judgment against recover $800, in the sum BUILD v. NORTH TEXAS POPE et ux. cent, 29, January per interest from with 6 N. LOAN ASS’ ING & respects judgment- in all other * No. 13236. undisturbed. us Appeals of of Civil Texas. Court Fort Worth. part, part, us undisturbed in affirmed in in part, Oct. reformed affirmed and re- part. and rendered in versed Motion for On Certiorari to Perfect Record. filed in This cause was this court on regularly and was
December reached September days months and five 1935—nine be- ing filed. . Opposing very graciously counsel n .may grant agrees that the motion for perfect record, thereby certiorari and filing'of copy
permitting the of Massa Company’s Bonding & Insurance chusetts.