*1
CO.
TANK
& REFINING
CAR
OIL
CO.
TEXAS
NORTH
STANDARD
¡.W.)
(249 !
<&wkey;757(2)—
5..Appeal
is shown for
unless
error
cause
ant
Statement
appellants’
or defendant
failure and
brief
should show substance
such
of
injury
pleas
abatement,
there-
material
has not suffered
of
of which
in error
by
appellate
assigned
as
of the cause
error.
in his defense
overruled,
Objection
appeal
pleas
the Court
motion be
If the
court.
of Civil
in abate-
on
give
Appeals
interposed by
impleaded
direction to
such
shall
at
defendants
(Effective
may
proper.”
improperly
deem
as
the
tained are not
sus-
the сause
instance
September
sufficiently
1821.)
where
X
pleas
in
are not
out
the
set
abatement
transcript
in this court Au-
was filed
The
the statement in
brief under
gust 23,
proposition
1922.
in substance or other-
opinion
wise.
therefore of the
court is
The
appeal
and this
be enforced
should
the rule
<&wkey;449—Cross-action
Pleading
impleading
6.
dismissed,
so ordered.
and it is
requisites
other
must have ail
original petition.
A
cross-action
show all the facts
requisites
original petition
have
necessary
and must
an
recovery
original action,
to
in an
CO.,
equally proof agаinst demurrer,
& REFINING
OIL
TEXAS
NORTH
defendants,
Limited,
and where
law
al. v. STANDARD
members
a common-
6873.)
trust,
impleaded
(No.
cross-action
*
general allegations that,
on
members
de-
Appeals
San An-
Texas.
(Court
Civil
partners,
fendants were liable as
31,
Motion
1923.
Jan.
tonio.
liable,
allegations
were also
1923.)
Rehearing
21,
insufficient on demurrer.
<&wkey;30—Petitionon
Bailment
1.
Rehearing.
On Motion for
subject
personal property
not
to
lease of
general demurrer.
Estoppel
<&wkey;$2(2)—Where
7.
lessor
petition
on
an
a contract of
A
action
complies
abrogation
with contract
until
alleged
cars,
the terms
of tank line
lease
deny
Instance of lessee latter
to
subject
lease,
demur-
is not
to
of such
validity.
allege
terms of another
failure
rer for
aWhere
the lease
tank line
contract for
to,
and made
referred
provided
oil cars
that such lease was
upon.
lease sued
the
had leased
from whom
owners
the lessor
possession
agent <&wkey;l24(2)—Authority
Principal
2.
provided,
and when
said lease
les-
jury.
to bind'
fully complied
obligations
sor had
of tank
on a contract
lease
In
action
an
abrogated
his cоntract until
lessee
cars,
au-
had
whether
line
lessee, having
received all the
thority
plaintiff
an
bind
benefits
under such
defendant, a common-law
validity,
estopped to
action
and in an
trust,
should
as such liable as
by special
urge
exception
lessor cannot
on the con-
petition
petition
failure of
tract,
stipulations,
lease
referred to
jury.
held for
effect
plaintiff
the contract
and defendant.
<&wkey;I9(2)—
instruments
Reformation
3.
<&wkey;457—Parol
Evidence
evidence
admissible
supply stipulation
Equity
omitted from
ambiguous
“Ltd.,”
“com-
mistake.
mutual
organized
under declaration
of trust.”
mutual mistake
phrase
abbreviation “Ltd.” and the
The
property
lease of
a contract for
company organized
'a declaration of
agent and
authorized
lessor’s
intention of the
in the contract
describe the
trust” as used
lessee, a common-law
officers
of the
to
should
personal property
particular
have no
lessee of
stipulate
such
members of
unexplained
meaning, and
have no other direct
individually
on
liable
not
parties upon inquiry
put
than to
effect
ascertain what
ed,
expressed
was not
traсt
intention should
equity upon
particular
was intend-
given
in a court of
question they
used in
the contract
appropriate pleadings
ambiguities,
interpolated
parol
tes-
obvious
apprise
agent failed to
les-
lessor’s
even
timony
explain and inter-
was admissible
of the limitation.
sor
pret
terms.
<&wkey;44—Parol
agent &wkey;>124(2)—Whether
Principal
instruments
9. Reformation'
settlement,
applicable
prevent
and whether he
evidence
made
had
rule
refor-
questions-for
make settlement
contract.
mation of
admitting parol testimony
rule
vary
agree-
action
a contrаct
an
or contradict terms
written
cars,
parol agree-
held to make
antecedent
tank line oil
ment
ments
rule
question
agent
thority
merged
lessor’s
to have
are
express,
implied,
subsequent
apply
au-
written
binding
to make a
the>
of the written instrument
the terms
controversy,
agree-
unambiguous
prohibit
plain
made
ref-
whether he
do not
ment for such
true
ormation of a contract
settlement.
d&wkey;For eases see same
Key-Numbered Digests
in all
KEY-NUMBER
May
jurisdiction
or error
* Writ
o£
dismissed
want
ior
*2
REPORTER
249 SOUTHWESTERN
mistake, Hicks,
Hicks,
Bobbitt,
where mutual
Dickson
intent of the
&
Wurz-
contract has failed to
Mueller,
fraud
exr bách
Hertzberg,
accident or
&
&
Kercheville
press such intention.
Thomson,,
Hair,
and
&
Mauermann
all
Antonio,
appellants.
San
for
tg=>I9(2)—
instruments
10. Reformation
Clamp, Searcy
Groesbeeck,
&
An-
San
reformation
warrant
will
Mutual mistake
tonio,
appellee.
for
equity.
lease
contract for the
In an action on a
personal property,
intended at
SMITH,
J. The Standard Tank Car Com-
insert
execution to
of its
pany,
time
corporation
a
Sharon,
domiciled
a
stipulation
members of
a
therein
Pennsylvania,
state
controls a line
agreement,
party
to>the
a
common-law
tank cars
others,
which it leases to
liability which it was believed
North
Refining Company,
Texas Oil &
an un-
membership
..trust,
in such
an incident to
incorporated
persons operat-
association of
expressions used in
contract did
the
in fact
failure to
but.
not
the
mutual
strument to make it
ing under a
members,
having
ánd
of-
operate
Greenville,
stipulation
fices at
Tex.,
a
Antonio,
San
mistake,
engaged
refining
reform the
transporting pe-
speak
intention
the true
products.
February
troleum
9, 1920,
parties.
of the
companies
two
entered into a written con-
.
company
tract
which the ear
subleased
19(1)—
instruments.
11. Reformаtion
<ss=»
to the oil
50 tank cars
creating
releasing liability
for a term
Mutual mistake
or lien
ending
3J,
ground
at the rate of
reformation.
$85
for
per
operates
month
October, 1920,
re-
car.
mutual mistake
Where
.company telegraphed
of one more
create
lieve or
company.that,
the car
lien,
release or create a
or to
of
equity
effectuate the real
temporary
on
operations,
suspension
account of
so that will
reform the
requested
the latter to take the
intention.
back,
and asked for a statеment of the
account.
back,
The cars were taken
<@=»383,399(1) Corporation
Corporations
—
rendered,
statement'was
but the
final-
agents,
agent’s
can act
ly disagreed
necessary
as
powers
amount
involved and
includes
actual
company brought
agency.
perform
against
the car
this suit
only through
corporation
can act
concern,
A
the individual shareholders in the oil
every agency
agents,
carries with it
alleged
partners doing
whom it
to be
business
powers
an
includes as
incident
refining
trade-name of
the oil and
necessary
proper
or usual as means
company. Upon
trial
the court directed a
purpose for
is created.
which it
effectuate the
company against
verdict
favor of the car
Newton,
Morehead,
Riley,
P. M.
L. M.
M.
c@=»428(I) Knowledge
Corporations
—
Blumel,
BÍaag,
White,
language Richard
Ed
ambiguous
E. X.
purpose
as
Morgan,
Woodword,
imputed
M.
G.R.
refining
agent’s
company, jointly
his and
oil
is an
advise
knowledge
within his
severally,
$13,150.02.
matters
Upon
of all
the verdict
contract, negotiated by
affecting
him,
directed,
judg-
returned as
the court rendered
whether or not
communicаted the true facts
verdict,
ment as indicated in the
and further
so,
principal he is
to his
and the
have done
White, Morgan,
in favor of-defendants
Wood-
knowledge
corporation
bound
ward, Haag,
Blumel,
over
defend-
as to the
ants Morehead and Newton for
the same
language
used in
it executed
appealed.
amount. All
presented by
the defendants haVe
agent.
the same in the form as
primary question
is whether or not
Corporations <@=w433(2) Apparent
author-
there was
material evidence adduced
—
agent’s
ity
and ratification
acts
upon any
controversy,
material
issue
al-
jury.
corporation
held
disposing
appeal
ques-
purposes
Whether
of mak-
tions
be considered
decided. The
disputed
ing
final
matters was
settlement
except
need
not be stated
as it
found
scope
authority in
particular
to the
dis-
matters
making
cussed.
by his
aets were ratified
under the
questions
Standard Tank
[1] It
Gar
evidence were
cars,
Company
itself
'was
lessee
the suit is based con
Appeal
Seventy-Third
Judicial Dis-
stipulation
tained
obtained
County;
Court,
trict
Bexar
Robt. W. B'. Ter-
thereunder
the sublessee were
rеll, Judge.
terms, provisions and" covenants of the
“the
Logan
Company
Tank
Action
Car
Standard
lease of said cars from
Trust
Philadelphia,
Refining
Company
trustee,
the North Texas Oil &
or the Un
Com-
pany, Limited,
plaintiff
Judgment
Company
Pittsburg,
trustee,
others.
ion Trust
appeal.
party
may be,
and defendants
Reversed
the first
case
(the
company)
and remanded.
car
tank
Digests'and
Key-Numbered
see
eases
same
and KEY-NUMBER
®3»For
possession
concealed
terms,
pellants,
said
made
suit
to them.
to
al
petition
neither
tion
the
there was
of the action of the
demurrеr. But we
tiffs were
together
gan
visions
order
remedies
the
dependent,
ed
effect made
titled
them,
term
be that
nated,
visions
cealed
Company’s
destroyed,
performance
subsequent
see’s
nated
the
initiated
the
the
time
to
Instances
would
question,
The second
complaining
[2] The
demurrer,
provision
collect the
general
set
final
execution
regardless
rights
rights, liabilities,
upon
present
or Union
instrument
trustee to
production
referred
provided.”
use,
when the
through
fixed
did not
were set out.
at a definite date
elected, notwithstanding
NORTH TEXAS
have disclosed that
their
were made
of both
out
in the concealed contract
the inner
demurrer,
undoubtedly
as defendants
know the full
any
by correspondence
fixed in
constituted the
ascertain
contract, which,
required
might
the
must be
no error in
negotiations
and,
pursuance
contract could
in
assignment
contract would
in
petition,
both
in
this
of
as well as
said cars
to in
by appellants,
present
appellants
Trust
in its
of the omission
the
cars
special
very
since
lessor would not
a suit to enforce the terms
them,
demand,
contracts,
The terms
time
special
be
state
parties.
final
of
will be. overruled.
the Standard Tank
multiplied
contract nor
latter,
court below
use
sustained,
overruling
think, upon
withdrawn
the defendants
Complaint
Companies,
rentals
set
petition
produce
final
calling
construed
overruling
of-which the
contract
contract sued
exceptions.
below, urged
terms,
or let
of the
contract;,
during
exception,
&OIL
under the terms
because
concealed contract
out
latter,
receive,
made
whole
and in
obligations
special exception,
have
thus
the
between the two
sued
obligations
sued
here sued for.
the latter
demands strict
complained
the inner
set out
when
since the
culminated
but the
pleadings
its terms
the
in
may
is
from the
cause
no
ground
REPINING- CO.
possible
impaired
made inter-
or
the
together
raising
the
any
of the
be entitled
agreement.
made here
on,
appellants’
*3
basing
overruling
(cid:127)
of the Lo-
or it
concealed
reference
Since
tenure
car com- on
either
wfere
tank car
whole
on were
demand
be
general
definite
up
bound.
gener-
of
termi- to
of
termi-
plain-
.
those
quot-
(2.49
were that
first,
may all
prо- duct,
at a
pro-
two
and of
this
Car
the
les- have
ap-
the in
ac-
en-
of,
in
in
of was
óf
S.w.)
brecht,
thereunder.
pared by
principals,
tiations
prepared
the
action with
ance
of
to
would
latter was not
by
principal
obligations
ity
without
the
was one
the
called
such limitations of
We
ers were under
the suit
the trial
appellee
agreed upon
holders which
be
he
thereto, except
personal
performed
would
these
then
authority,
thereby.
ed
and if
agreed
and not to
enforce
the
evidence,
those
Albrecht’s
so
it,
placed
affirmative
procured
y.
jury
officials of
matters involved
repeat,
these
so.
delivered
embracing
acting
of their
they
We
mentioned. He was
bind
facts are
acquiesced
STANDARD
facts,
look
common-law
jury along
contract with
with the
acting
by
authority
seeks
by
from all
worked
the
purely
Albrecht was then executed
details,
liability
specific performance
He
raising
sent
think,
is
force the conclusion that Albrecht
who
therein.
them,
details,
and his
thereunder,
of the
within
acquiring
there
or not
the individual
the
contract,
and should
between him and the other
ana
The
work
incorporated
respective rights
agency
it to his
to eliminate
Antonio to
the oil
acts, representations,
therefrom,
them. The contract thus
with
contention
they
found
contract
proceeded
the terms
oil
stipulations
however,
acquiesced
the circumstances
in its
was
these issues
corporation,
should so
association,
assets
fact,
with
Albrecht,
liability
company officials, agreed
representative,
and all
principal
According
provision
the.
negotiations
claim was"
prepared
notice to
and of its
notice of the
in
company,
ample testimony upon
apparent scope
principal,
in
accepted
expressed
have been submitted
to be determined
details of
of the oil
oil
in
those
that his
continue
of
with
and now seeks
its behalf details
oil
whose sharehold-
raises the
these issues from
shareholders,
delegated by
for the
provide,
therein,
company’s
other issues' we
the
at the time he
will be bound
company,
him
the final con-
of
excluding
and remedies
issues,
Albrecht was
authority,
the
execution
thereof.
was advised
such effect.
intеnded to
the benefits
with
who
fact.
execute
conditions,
to be
testimony,
provisions
bind
nonliabil-
company.
company.
of the re-
acts
perform-
that the
then the
did and
issue
by
further
or con-
trans-
agree-
adopt
either
stock
nego-
party
them,
init
both
pre-
But
Al-
so-
by
If
it,
249 SOUTHWESTERN REPORTER
adjudi-
no
may
personal
ties
said interested
strictions
tice
So, also,
cause,”
prayer
if it
cated
citation,
this
there
thereof
'Complaint
the authoriz
etc.
the intention of
some
made
officials,
company’s
pleas
of the oil
ed
in abatement
filed
liability, by
the defendants so
to сontract
such intention should
were sustain-
given
in a
ed. The
statement in
brief under
pleadings
equity, upon
proposition
court
based
action of
if, through
mis
and,
pleas
mutual
court
not sufficient. The
in abate-'
au
statement,
take of the
ment are not
set out
respectively,
thorized
limitation
and officials
substance or otherwise.
referred to
We are
ex pages
from he contract as
transcript
omitted
for the or-
expressed
ecuted,
imperfectly
therein
pleas,
or is
ders
appearing
but the orders
*4
458,
W.
(Farley
Deslonde,
pages
S.
6
69
v.
on these
not relate
do
supply
786),
general
abatement,
pleas
and
then
court
but to certain
pleadings
and
upon
demurrers,
special
omission
which are shown to
agent
fails
his
even
have been
were directed at the cross-action referred to
sustained.
demurrers
these
intention, for
apprise
principal of this
to
notice
his
is,
acting
acquired
agent
ap
quoted above,
prop-
think
we
authority
apparent
express, implied,
erly
or
sustained.
principal.
course,
Mechem
notice to
[6] A
req
cross-action must have all the
Story
Agency,
seq.;
Agency,
on
on
§
720
petition,
§
uisites
and must
Grady,
854;
740;
p.
Irvine
L.
v.
21 R.
recovery
C.
show all the facts essential to
Supply
1028;
120,
Evans v.
original action,
19 S. W.
equally
in an
and must be
Berg
App.)
(Tex.
W.
proof
Civ.
S.
Co.
demurrers.
In the cross-action
(Tex.
App.)
allegations
172 S.
entirely
man
Brown
Civ.
v.
here the
too
Wynn
554; Rodgers
App.) 156
Civ.
recovery against
v.
parties
to warrant
impleaded.
S. W. 340.
ap
therein
pellees
If it
meant
was
that,
company
allege
impleaded
the oil
parties
[4] It
when
that the
company
requested
cars were
to taire its
shareholders
the car
trust
cóntro
versy,
partners,
back,
reason thereof were
latter
terminate the
jointly
and
holders,
liable
all the other share
with
a set
Antonio
sent
tlement with the
proper parties,
and were therefore
agent,
re
former. This
showing
and
all
these relations of
sponse
purpose,
on
called
to this
parties
alleged,
had
a different
agree
company,
reached an
question
presented.
would be
controversy
them,
subse
but a
ment with
essentially
We think
this
case.
quently
this
arose as'to the effect of
settle
testimony upon
There
awas
conflict in the
purpose
ment,
ef
pleadings,
the material
raised
issues
car
here. The
fect is
and these issues should have been submitted
challenges
to con
jury,
judgment
to
be
which end the
the oil com
the character
clude
reversed,
cause remanded.
pany
rais
fact,
contends was made.
Reversed and remanded.
clearly
ed
and should
jury,
have been submitted
Rehearing.
On Motion for
express, implied,
both as to the
-
agent,
[7] We have concluded
in error
to the effect
we were
in
of
finality
assignment
of the settlement.
If there was
second
contrоversy
holding
faith
as to
amount of
a
the
that
the court below
debt,
appellants’ special
with
have sustained
ex
authority, agreed wih
to settle ception,
required appellee
set out
amount,
specific
provisions
for a
of the
Both
this
then
to in
the contract referred
binding upon
Regardless
binding
contract
character of the final contract
sued oh.
by the
raised
issues were
the tank
jury questions.
case, and both were
ear
plied
com
that
had
[5] Some of
obligations imposed
parties defendant, and
number of additional
until the
was аbro
therein
gated
whole
sought
to have
with
cross-action
appellant,
liabili
the instance of
had
who
adjudicated along
all the defend
ties
to it
there
received
under. This
to
the benefits
simply al
In
cross-action it was
appellant
ants.
being
leged
pleaders
if
“are
validity
that
they specially
as made
implead
deny,” then the
(6
which
ed defendants
fendants,
699,
L.
collat
R.
and authorities there
C.
partners
“are also
assignment
these de ed),
error
second
jointly
are
demand
liable
therewith be overruled.
debt,
upon plaintiff’s
any,
Ip
parties,
the contract
pray
defendants here and now
prepared by appellee’s agent,
these
that
was
appellant
persons made
additional
de
such
fendant
was described as “North Texas Oil
Refining
being
in order that the
and liabili-
Co., Ltd.,”
&
and as
“a com-.
parol testimony
the written
biguities
became
ing
ment,
avoids
ment
over,
here to
mony
or
are
agreements.,.
pressed
that these rules
contain
trust,”
ticular
questions
The abbreviation
raised,
course does
whom
tions,
pressly exempted
other direct effect than
cern
was a conflict in
these
that
dividual
contract,
that end
tive
understanding
given
also
company
Morehead
Albrecht omitted
tion, “Ltd.,”
the debts
trust.”
the
record in Hunt
therein were
for
omissions,
company organized
shareholders in the trust
[8,9]
n
inquiry
preparing
contradict
testimony,
jury,
contract,
parol testimony
trust
words
omitted the
was a so-called common-law
the
no contract is so
organized
and determine
thereto
or that all
that effect.
matters,
249 S.W.—17
ealled the latter’s
those rules and
NORTH
meaning, and, unexplained,
Out of
debts
stipulations
interpolate
performance
Appellants’
intеnded
liability
if matters
parties,
Albrecht then inserted
appearing
or
of law
organized
used
to ascertain
instruments are
in
not
should have been submitted
for the concern’s debts.
the contract should and would
more
the
in
It
of the declaration
alternative
appellant,
to have
the
explained
that
county, Tex.,
provision
under declaration
operated
in
is admissible to
enforcing
contravene
but
apply;
antecedent
TEXAS OIL
supplemental
arise,
original
*5
concern,
for the
Albrecht for
from
“Ltd.,”
contract with
upon proper plеadings
only
given them,
definite
manager,
obvious
It
will
in the
expressly
under
carrying
foregoing
their use.
concern, and,
the issue was
of this contract
name of
contract,
what’particular
was also
and some
were
sacred in
descriptive
further
where the
not to be held
subjects
not
of a written
court to
draft
and'
performance
and the
had and would
in the instrument
rule,
the contract. This the
put
but were
attention to
then
merged
plainly expressed
him
disposition
parol
contract. More
ambiguities
the shareholders der
material.
Morehead,
on
personal
declaration of
declaration
of the contract
& REFINING
description,
appellant,
heard to
facts several
appellee,
under which
intended and
have no
They
of them are
the
presence
intended
in
the
agreements
the instru
form as to
trust;
parties up
hear
concerning parties
phrase,
into such
according
of trust.”
abbrevia- where
terms of release
have
evidence
negotia-
the con-
descrip-
express holders,
clearly ticularly
served
agree
mean
be
There
or
liable
testi
these
rules
herе.
(249 S.W.)
vary
with v.
par
give
into
am
and so that it
ex-
no
be
of intention.
it court
it the clause contended
ed
Ward,
wili not intercede
ever
believed,
understood and
parties,
course,
shareholders under
personal liability.
limitation
sential
laration
liability
lief heretofore
tual mistake of
trust
pressed
clauses
vidual
al or
the
attempted
not in fact
concerns.
courts
being
cident,
Gammage Moore,
valid,
taken as
trust estate.
Short,
prohibit
exemption
expressing
A[12]
[11]
Ward.
Ward,
Deslonde,
contract so
v. STANDARD
omission was not of a “collateral issue.”
which the сoncern was
refining
that the rule is that in such cases
the rule Texas is
negotiations
operates
309; Ramey
could
a collateral
individual
lets it
have the effect of
would goes
Appellee urges
form
meaning
charged
And,
have done
thereby
form
empting,
Ag.,
for in
truе
not Albrecht had
proval
in the contract
tive,
brecht
which are
pellants.
p.
implication
Antonio
limitation
was that he
payments,
the facts and circumstances
in
sive,
expressed,
ted the
123, 19
offices of
continued
means
Cassidy,
tion
and
done,
fining company from individual
The extent
thority
why
tatively
cludes
conditions
thority
exempting
Civ.
(Tex.
appellants upon,
put
created.
true
case
completed
principal
of the matters
App.)
§
is one
execution, by
Civ.
initiated
Civ.
advise
as were the
Here
S.
to bind
anof
when it
individual shareholders
for that
agreе upon
Every agency
with the
least raise the
completed agreement
not the
the transaction.
App.
effectuate
App.)
power
and concluded
it,
We think the
to his
182 W.
so,
a conflict
the shareholders
behalf
negotiations
execution thereof
operation.
Mecham, Ag.,
as an
could
purpose,
respective
form for
or not he.
principal approved
fact
seq.;
S.
his
172 S.
Albrecht knew
executed the contract in
449; Birge-Forbes
principal,
purpose. The
nature
principal of
appellant
formulate,
correspondence
knowledge acquired by Al