*1 for new considered on trial so cannot be
appeal. of Civil Rule Rules Texas
Procedure. appellant says there point
In his fifth inquir- support
was no evidence the issue compensate
ing-as to the amount that would premises part
defendant for
made available to him. estimated
Appellee that he testified be space occupied by appellant’s
the attic the entire
longings constituted one-tenth house; one-
square footage oc months eight
tenth of the rental $185) XX 8
cupancy (¾0 say We cannot
amounts to $148. in the evidence. support finding has no
Appellant’s is overruled. point fifth first three appellant’s
Having sustained judg- the trial court’s
points, we reverse another cause
ment and remand
trial. WIBERG, Appellant,
Harry A. LAND DEVELOPMENT COAST
GULF al., Appellees. et COMPANY
No. 6551. Appeals of of Civil Texas.
Court
Beaumont. Sept. Rehearing
On *2 finally explained herein, became the suit
be Develop- & against one Land Gulf Coast Company, ment successor to Tex-America Company. Trust De- Gulf Coast Land & velopment Company will be referred to re- will at times be Wiberg. ferred to as Company Tex-America Trust Donahoe, formed in 1953 Carter H. C. appellant, Its Wiberg. Chase and Harry A. Secretary charter granted by capital State with at stock of shares par value. These three men were $1.00 corporation. All of the three, except stock was cer- owned tain two qualifying shares in names of persons. other It was determined April stockholders on amend the charter of the increase the stock so that it would million have one par shares of stock of no value. The Secretary amended charter filed with the State reflected that the sub- three directors corporate scribed and for stock of the $133,633.36. Upon value being advised May 6, 1955, Secretary that the State charter, had filed the amended Board of Directors of the company was held at entire which time the composed Donahoe, Board present. Among the matters question attended was the completion of need aof successful program, stock sales and it was decided would handle Ac- this. cordingly, proposed by Dona- resolution Houston, appel- Sonfield, for Chase, hoe and seconded Sonfield it was: lant. Chase, That Carter “RESOLVED: Harry Wiberg, President, and A. Secre- Madole, Pasa- Jr., P. Smith A.N. J. employ- tary, given a be dena, appellees. ment, by management-type whether otherwise, period McNEILL, Justice. year August renew- one annually thereafter addi- was instituted able four action This which, years, the terms corporations, Tex-America under tional two devoting their Company Land & consideration of and Gulf Coast Trust Trust Company, appellees, re- time to Tex-America Com- entire Development compen- them shall pany, each of be on sale cover salary, payable Company A Trust as follows: sated of Tex-America stock 15th, equal 1st and semi-monthly on the alleged to due him. will be As By vote on to Chase unanimous 7^/2% 7½% seconded, capital duly stock motion made and those the total sales present, during acting two both as stockholders directors, approved action of the period preceding.” weeks next *3 Board Directors as taken at such meeting recited The minutes of this meeting as min- and reflected such he fact that Chase called attention to the utes.” many and months Wiberg had devoted making No further formal action toward and corporation, effort to the affairs this completed taken than the was expected would be their entire to devote However, thus stated. and meeting time between the date of this per- and Wiberg entered and started 1, 195S, con- August effective date of such forming their duties in connection with they not re- for which had services sale of the stock under the resolu- compensation. ceived nor would receive passed by 6,May tions the Board on they would Chase and both stated clearly just The record does not indicate compensation prior 1,1955, waive August to “ how well the along stock sales moved * * * protected in they provided were awhile, any at but rate the stock sold possibility manner some amounts, beginning various as low renewed from not respective being contracts per cents in- gradually share and period 66^rd year year year during five to 1956, creasing price set the Board Mr. motion of Accordingly, on stated.” per share and thereafter some $6.60 Chase and Wiberg, seconded it was Mr. high per was sold share. $8.25 “RESOLVED: That in the event men, These two Wiberg, Chase and em- any Board of Directors elects for ployed a they paid sales force and em- year of year the five term of con- ployees out of they, employment tract of given Chase and Wiberg, deposits Daily were to earn. same, not to renew the then proceeds of stock sales were made to paid shall each be bank, company proper credit of the gross of all 7½% meeting and at each Board of Directors’ capital corporation stock of the reports thereafter by Wiberg were made re- May 6, 1955, between and the date of progress flecting the had made. The sales termination, such less the amounts of grown not material amount until salary with they which have each been part December, 1955, the latter and on credited.” resigned account of ill health of Chase he company gave up from the the sale of A meeting of the stockholders 24, operations, February stock effective the Board of Directors of Tex-America Thereafter all stock sales were Trust Company May day, held the next handled for the until m., p. at 3 at which all the directors meeting, he was notified at a Directors’ held of said The same attended. 1957, on that no further sales of persons, owning a majority the stock June arrange- were be made under stock corporation, were also present and acted existing with ments him. as stockholders. At this meeting ac- counting firm of Farb-Brockstein Com- Appellant’s suit for commissions earned pany, CPA’s, employed as auditors unpaid $33,- amounted to the sum of and accountants year company on This amount arrived 292.00. year basis. The minutes of this upon proceeds of sales of stock be- based also reflected following: 1955 and tween “Secretary Wiberg then read $443,833.36, from which amount of sales compensa- meet- he no minutes claims received
ing of alleged the Board of Directors held on tion. It was further he sold pro- stock, 737,515 ployed shares of such (Special Issue sell stock paid $718,873.36 duced on which he had been No. 1 answer); awas $39,659.87, the sum and there (2) adopted That the resolutions alter- him of An owing balance the Board com- Directors such plea native was made he recover pany thereafter ren- sum on the basis of value of services corpora- ratified and by such confirmed consent knowledge, dered with full ; answer) (Special tion Issue 4 and However, this acceptance of defendant. (3) Chase, That and Wi- Donahoe no appeal and urged count berg subscribed for stock made. will be further 'comment thereon *4 $133,633.36 May the amount of before and suit Appellee appellant’s 6, 1955, answered and an- (Special Issue No. 7 no defenses, that since urged, among other swer) . contract, resolutions written than the other Upon verdict, for this moved con- by the prepared
was
and executed
$33,-
judgment in
favor
the sum
for
con-
the
parties,
completion
no
tracting
in the
sum of
292.00 or
alternative for the
contem-
appeared to be
tract was made as
in
judgment
The
granted
court
resolutions,
contract
plated by
no
the
and
$4,233.13
further sum
his behalf for
the
and
parties.
further
the
It was
existed between
$1,500.00
attorneys’
as
fees.
existed,
Chase
a
since
urged that if
contract
board
Wiberg
the
and
were members of
appealed from this
parties
Both
have
was
directors,
their vote therefor
helpful
three
And
filed
judgment.
both have
approve
necessary
they having
to
and
voted
briefs,
supplemental
as well
briefs.
In
as
cor-
and their
between them
this contract
addition,
orally argued
after this cause was
void as
poration,
the contract was
to
us,
granted appellee’s
we
motion
before
in this
public
and
policy
strike,
cannot be enforced
ap-
perfect
By motion
the record.
to
suit.
appellee
pellant urges this was error. Since
properly complained
question in its
of the
time
proper
during the
to state that
is
at the close
motion
instructed verdict
on Tex-
program
carried
the stock sales
was
evidence,
pointed
out
is
Company
Trust
formed the Gulf
America
paragraph below,
unnecessary to
next
it is
Development Company as
Land &
Coast
sup-
appellant’s
strike the
act on
motion to
and
subsidiary
wholly
owned
was
transcript
plemental
filed.
Company.
Trust
controlled
Tex-America
suit
filed the
before this
was
But
question
disposed
first
be
to
Develop-
Gulf Coast Land &
existence of
appellee that the
urged by
the defense
dissolved,
assets
Company had been
its
ment
passed by the Board of Directors
resolutions
passed
Trust
and liabilities
to Tex-America
whereby
and
Company and the name
Tex-America
employment, wheth
given a contract
“be
changed
Land &
Trust
Gulf Coast
management-type
other
by a
er
contract
style of
Development Company; hence the
not sufficient
create the con
wise” was
this suit.
quoted
language
the
indicated
something additional
done before
be
was to
Trial
were
issues
completed
could
held a
be
one.
the
jury’s
substance
submitted.
question
this was
of law
And further
pertinent here,
findings insofar as
are:
court,
determined
be
not have been
should
submitted
(1)Wiberg
Tex-America Trust
issue
Company
timely
intended
filed
jury.
Since
its
resolutions
corpora-
urging
instructed verdict
Board of
this
Directors
motion
brought
in motion for
point,
tion of
were
forward
new
to be the
whereby
properly
Gray
raised.
agreement
trial,
point
was em-
Blau,
fair,
just
corpora-
53. The
Tex.Civ.App.,
S.W.2d
beneficial
tion,
point,
The facts
though,
merit.
full disclosure of the circum-
is without
lan
ambiguous
stances
issue,
surrounding
aside from
made
this
such
from,
just quoted
guage of
the contract should
the resolution
upheld.
be
dispute.
many
parties
are without
All the
have cited
resolution,
cases in
company
From
cases and
at the date of the
briefs.
directors,
found,
all of
others
well as
we have
summarize the
succeeding
we
following
acted
employees
company
principles
ficers and
controlling
law
present
program set
and treated
the stock
case:
forth in the
as the contract
The director of a
money
years.
two
over
Great sums
stands in a
relationship
fiduciary
to his
period of
obtained
over this
company.
fairly
honestly
He must act
two weeks
paid every
time and commissions
with it
perti
and make full disclosure of all
Application
period.
for stock sales of this
nent information
subject
in relation to the
during
registration
was made
time for
matter of
negotiate
contract he would
Secretary
with
of State
of securities
with it in which
personal
he has a
forth;
interest.
which these commissions
set
*5
Patton,
284,
Tenison v.
95 Tex.
means,
necessary
and his vote is
manner; differently.”
“In
to authorize
another
contract,
the
the
par
actual
the
contract is
dealings
The
and conduct of
unenforceable.
Irrigation
Davis
Co.,
v. Nueces
ties as here delineated is sufficient to make
103 Tex.
243,
4;
126
Dunagan
S.W.
Bushey,
the contract
v. Breck
152
v.
enforceable. Johnson
630,
148;
enridge-Stephens
Tex.
(Com.App.),
Co.
263 S.W.2d
Title
McLendon
Black,
Hdwe. Co. v.
Tex.Civ.App.,
resolution court trial Wiberg to sell stock. this sum from the total
deducted *6 that Appellant asserts sold. of stock RAILWAY & PACIFIC TEXAS way, urges He in some error. COMPANY, Appellant, explained, this satisfactorily paid had been subscribed stock which PORTER, Appellee. H. A. again by the directors proceeds thereof. received 3735. his to show burden was on Appeals Civil of Texas. Court of upon such to recover commission right Eastland. amount, to do. which he has failed Sept. 7, are therefore circumstances facts 1962. Corpora against him. 19 construed C.J.S. Rehearing Sept. 28, Denied 781, p. deducted sum is
tions This § sold. total of all stock $585,240.00upon which amount leaves This $43,893.00, 7½'%,
appellant is entitled already he has received. what
less appellant had trial
stipulated then, amount, $39,659.87. The
been unpaid This him and
due We, allowed the trial court. amount judgment. affirm
consequently,
Affirmed. FOR REHEARING
ON MOTION con we further consideration
On perforce Art. is entitled
clude