173 F.2d 162 | 5th Cir. | 1949
This appeal and cross-appeal bring up controversies between two stockholders in Big State Vending Company, a corporation engaged generally in manufacturing and selling vending machines. They began in a suit by appellee on a promissory note for $4000.
Appellant, admitting its execution, denied liability on it, and, by cross-action, sued for sums in excess of appellee’s claim against her.
Her defenses to the note were: that it had been given for appellee’s one-third of the stock in the company, of which appellee was president; that the stock was worthless and known by appellee to be so; that she had been induced by fraud to buy the stock and execute the note; and that there was a total failure of consideration.
Her cross-action was for amounts claimed to be due to her for monies advanced by her to the corporation upon the understanding that, if the corporation didn’t pay it, each stockholder would be liable for the advance in proportion to his interest in the company, and there was also a claim for damages for fraud and over-reaching.
Appellee denied all the charges of fraud and over-reaching, and all of appellant’s claims by way of cross-bill.
The cause was tried to the court without a jury, and there was a judgment for ap-pellee for part of his demand, to-wit, $2,-656.59, including therein principal, interest, and $200 attorney’s fees, and against appellant on her cross-action, except as indicated by the reduced amount awarded appellee.
Appellant has appealed from the judgment, and appellee has cross-appealed. Here, abandoning the defenses to the note which she had urged below, appellant defends against it on the ground that the note was given for stock in a corporation formed and operated for the purpose of the manufacture, sale, ownership, and distribution of gambling devices, and was, therefore, unenforceable and void.
As to her cross-action, she claims as error, without arguing and explaining why, that she was not awarded judgment for the sum she claimed, $25,523.42.
As to the main appeal, appellee, pointing out that the defense was not specially pleaded,
As to his cross-appeal, appellee points to the fact that the signed agreement
Reformed and affirmed.
“a party shall set forth affirmatively * * * illegality * * * and any other matter constituting an avoidance or affirmative defense.” Rule 8(c), Federal Rules of Civil Procedure, 28 U.S. C.A.
Sharp v. Beacon Oil & Ref. Co., Tex. Civ.App., 108 S.W.2d 870; Durdin v. Barr, Tex.Civ.App., 121 S.W.2d 420; Pioneer Mut. Comp. Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202; John Hancock Mut. Life Ins. Co. v. Houston, Tex.Civ. App., 76 S.W.2d 176.
“The State of Texas,
“County of Dallas.
“This agreement made by and between R. H. Warner, A. A. Guarnera and L. O. Brown, in connection with the incorporation of Big State Vending Co., Inc. of Dallas, Texas, Witnesseth:
“The Parties recognize that in order to properly expand the corporation’s business, money must be borrowed from individuals or banks. For their mutual protection and benefit they agree:
“1. All money borrowed by the corporation from individuals or banks shall be evidenced by the corporation’s notes signed by each of the above named persons as oificers thereof.
“2. In the event of the failure of the corporation to pay any such note or notes that may be made to any of the undersigned for money borrowed from them by the corporation at any time that all of the undersigned own stock therein, the undersigned will each share the loss by paying to the owner of said note one-third of such loss, that is, one-third of such amount as the corporation does not pay.
“Witness Our Hands this 20th day of Aug., 1946.
“R. H. Warner,
“A. A. Guarnera,
“L. O. Brown.”