In 1967 the plaintiffs O. L. Ford, Thomas Welch, Tinnie Garrison and Conde Rod-riques, together with several other persons, formed the Dimple Grazing Association and incorporated it as a Texas non-profit corporation. It was created under the supervision of and in cooperation with the Farmers Home Administration of the U. S. Department of Agriculture for the purposes of purchasing and holding grazing lands for the joint use of its members. The organization was a membership corporation, as distinguished from a stock corporation, each member being issued a “membership certificate” to evidence his status as a member. The corporation began its existence with some thirteen members. A $411,550.00 loan was obtained from the Farmers Home Administration and was used to purchase approximately 2600 acres of grazing lands. A set of by-laws was adopted which provided,
The defendants have appealed from the judgment below contending that the membership rights of the plaintiffs were subject to loss by waiver, and that inasmuch as the jury found that such rights had been waived, the trial court should have entered a take-nothing judgment. The plaintiffs contend that, as a matter of law, they were still lawful members of the corporation at the time the land was sold, and there was no waiver. It was undisputed that plaintiffs’ membership certificates had not been physically surrendered or forfeited or can-celled in accordance with the applicable provisions of the by-laws. 3
To sustain the trial court’s action in disregarding the jury verdict and rendering judgment non obstante veredicto, we must find either (1) that, as a matter of law, the plaintiffs could not waive or abandon their membership in the Dimple Grazing Association, Inc. short of a surrender or legal cancellation of their membership certificates, or (2) that, if such membership were subject to loss by waiver or abandonment, there is no evidence that such a waiver or abandonment was in fact accomplished.
There are two types of corporations — stock corporations and non-stock or membership corporations. 18 C.J.S. Corporations § 19, p. 399;
Schroeder v. Meridian Improvement Club,
With the foregoing principles in mind, we note the following evidence presented by the defendants: O. L. Ford ceased to participate in the corporation’s affairs after 1969. He grazed no cattle after 1969, neither paid nor offered to pay any grazing fees since 1969, attended no meetings since 1969, and “just left it up to the fellows that were left there to run it . . .”. Thomas Welch grazed no cattle after 1968, neither paid nor offered to pay any grazing fees after 1968 and attended only one meeting after 1968, which was in the spring of 1969. Tinnie Garrison removed his cattle from the corporation’s lands in 1970, never thereafter grazed any cattle or paid or offered to pay any grazing fees, and never attended any meeting after 1970. Conde Rodriques grazed no cattle after 1970, never attended any meeting after 1970, neither paid nor offered to pay any grazing or other fees after 1970, told Jack Pollock that he was quitting the organization, and “just left it up to someone else” to take care of the corporation and its obligations. All of the plaintiffs acknowledged that they knew the corporation was required to make the payments on the FHA mortgage or lose the land, and that the grazing fees which each member was obligated to pay were depended upon for that purpose. On the other hand, the evidence showed that each of the defendants remained active in the organization from the time he became a member,
The authorities speak of losing one’s membership rights by abandoning the organization and its purposes, whereas the jury issues here inquired if plaintiffs “waived” their membership rights, but in a case of this type, waiver and abandonment are almost identical. See 60 Tex.Jur.2d, Waiver, Sec. 2, p. 183. In fact, waiver is a species of abandonment.
Jordan Drilling Co. v. Starr,
We recognize that the by-laws of the corporation provided for the termination of a member’s status by voluntary surrender of his certificate of membership or by the forfeiture of that certificate by act of the directors for failure to pay lawful assessments, and that neither was literally done in this case, unless it can be said that by abandoning the organization and its purposes, a member has, in effect, voluntarily surrendered his certificate. But the physical surrender of the certificate itself is not absolutely necessary for a termination of one’s membership. The certificate does not constitute the membership relation; it is but the evidence of that relation. See 18 C.J.S. Corporations § 258, pp. 721, 722. Obviously, in a proper case, that relation may be terminated without a physical surrender of the certificate. For example, can it be doubted that a letter of resignation delivered by a member to the corporation, although unaccompanied by a physical delivery of the certificate, would be an effective termination of a member’s status? We think not. Compare Wall v. Bureau of Lathing & Plaster. of Dade County, supra.
Plaintiffs’ membership rights being subject to loss by waiver or abandonment, and the jury having found such waiver upon sufficient evidence, the trial court should have rendered a judgment that the plaintiffs take nothing. For the reasons stated, the judgment of the trial court is reversed and judgment is here rendered that the plaintiffs take nothing.
Reversed and rendered.
Notes
. Originally included as plaintiffs were Charles Martin and James Everett, both of whom thereafter filed disclaimers.
. The resolution of March 16, 1973, recited that a net profit of $130,408.20 was realized, with $32,602.05 being distributed to each defendant. In response to interrogatories, however, each defendant answered that he received $39,-122.46 from the land sale.
. There were also several other persons who, although not active in the organization, still held uncancelled and unsurrendered membership certificates. They were not joined in the suit either as plaintiffs or defendants.
. In Texas title to real property may not be lost by abandonment.
City of Corpus Christi
v.
McCarver,
