*1
159 SOUTHWESTERN
(Tex.
REPORTER
plaintiff
defendants,
rehearing,
appeals.
incorpora-
Reversed on which had been furnished one of the
purpose
tors
constructing
for
the
an aerial
and remanded for new trial.
corporation,
to be used
the
assumed the
Stephens
Howell,
Jas.
question
E.
R.
both of
corporation
whether the
payment
for the
evidence,
Benjamin,
held,
appellant.
the debt
Brookreson,
for
J.D.
jury.
appellees.
Benjamin,
cases,
Corporations,
[Ed. Note.—Por other
see
Dig.
2094-2098;
Dig.
Cent.
§§
Dec.
§ 521.*]
DUNKLIN,'J.
This suit was instituted
Corporations
Corpora
2.
(§ 661*) Foreign
—
against
Ryder
S. S. Anderson
W. A.
and J.
tions —Actions.
promissory
Shaw,
$250,
A.
of
on a
foreign
for the sum
corporation,
note
a
Where
has
which
procured
not
state,
a
judgment
license to do business in the
and from a
favor
upon
sues
a contract made within the
appealed.
defendants the
has
state, the action must be dismissed.
alleged
petition
prin-
It was
in the
that the
cases,
Corporations,
[Ed. Note.—For other
see
cipal
$250,
of the note was
but
Dig.
mistake
Cent.
§§
2546, 2563-2567;
Dig.
judgment
only,
it was
Dec.
§ 661.*]
written
$200
sought
Corporations
$250,
Corpora
with interest and attor- 3.
(§ 642*) Foreign
—
Doing
tions
ney’s
general
Business Within
State.
fees.
addition to a
denial
foreign corporation,
Where a
licensed
pleaded payment.
the defendants
A note
state,
within the
sold to defend-
plaintiff,
was offered in
evidence
construction,
ants materials for
to be delivered
objection
urged by
place
business, pay-
was excluded
on cars
at the seller’s
being
installments,
pay-
ment to be made in
two
ground
defendants on the
that
it was not
days
able before the
and the last
alleged
petition.
such
examination
it
note as
in the
An
operation,
after the structure should
inbe
record,
think,
we
makes corporation
doing
was not
business within the
required
very
erroneously
in that the
state,
clear
contract
it to
the court
furnish
superintendent
a suitable
for the construction
cluded the note. On
consideration
by defendants,
in case he was desired
harmless,
error
we concluded that
being
transaction;
contract
an interstate
Ryder
foreign
corporation
view of the fact that the
might
defendant
hence the
sue in the
state courts.
testified that he executed the
versy,
in eontro-
note
cases,
Corporations,
[Ed. Note.—For other
see
and counsel
defendants admitted
Dig.
2520-2527;
Dig.
Cent.
§§
§
Dec.
642.*]
open
court
sued on was
note
Partnership
(§ 41*) Organization
4.
oe
reconsideration,
—
On
executed for $250.
how-
Corporation
upon Rights
op
—Fraud
hardly
prepared
say
ever,
feel
that the
State.
ruling
harmless,
incorporated
in view of the fact that
Where citizens of Texas
un-
general mining
der the
laws
Arizona
do a
notwithstanding
the admission of the de- business,
Mexico,
the mines
located in
Ryder
fendant
had executed the note
their acts were not a fraud
the laws of
notwithstanding
upon, and
as declared
copartners
Texas
as to
render them
liable
merely
corporation
because the charter
is in the
fact
there
record
corporate meetings
state
payment,
judge peremp-
evidence of its
torily
incorporation
Texas laws allow
defendant,
a verdict for
directed
purpose.
same
judgment
court,
followed.
which the
cases,
Partnership,
[Ed. Note.—For other
see
presumably gave
having
note,
Dig.
56, 58, 59, 74;
Dig.
Cent.
§§
excluded
§ 41.*]
Dec.
charge upon
assumption
peremptory
Corporations
(§ 653*) Foreign
Corpora
5.
—op Incorporator.
legal
before the
there was
evidence
tions —Liabilitt
1314, requires
Rev. Civ. St.
art.
plain-
judgment
for the
court
foreign corporations desiring to transact busi-
ruling
predicated. The
tiff
therein,
ness
state
solicit business
secretary
fact
that defendants
copy
also account
file with the
state
of its
incorporation,
procure
articles of
li-
pleaded
offered no evidence
cense to transact business. Article 1318 de-
say
unable to
At all events we feel
them.
foreign corporation
clares that no
any
in
in
can sue
ruling
with-
erroneous
court’s
upon any
of the state courts
demand
tort,
prejudice.
contract or
unless when
was
had
office
corporation
tort committed the
accordingly
appellant’s
ordered that
incorporation
filed its
articles of
rehearing
granted,
motion for
Secretary
foreign
of State. A
cor-
affirming
judg-
opinion
organized
poration
former
rendered
to conduct
busi-
corporate meetings
and authorized to
judgment ness
hold
withdrawn,
and that
ment be
adopted
Texas
contract of
the in-
one of
and the cause'
of the trial court
reversed
corporators for the erection of an aerial tram-
way, extending from its mine in Mexico to the
for another trial.
remanded
state of
where the ore
towas
be smelted.
sitting.
SPEER, J.,
merely
as the
statutes were
Held
intended
prevent
corporations
doing
busi-
ness within the state and were not
intended
prevent
recovering
in the state courts
arising,
valid claims not so
shareholders
A. LESCHEN SONS ROPE
MOSER
&
CO. v.
not liable for its debts
et al.
copartners,
though
even
it was
busi-
(Court
ness in the state without a license.
Appeals
of Civil
San
Texas.
Antonio.
cases,
Corporations,
On
Motion for Re-
[Ed.
June
Note.—For other
see
2547-2549;
hearing,
22, 1913.)
Dig.
Dig.
Oct.
§§
Cent.
Dec.
§ 653.*]
—
Corporations
Assumption
(§ 521*)
op
“Improve
—
(§
24*)
6. Mechanics’ Liens
(cid:127)
Jury Question.
ment” —WnAT Constitutes.
Debts —
In an
action
and its
An aerial
point
collect a debt for materials of
ore over
river
in Texas where
topic
Dig.
Dig. Key-No.
*or other
Rep’r
oases see
section
in Dec.
NUMBER
Am.
Series
Indexes
*2
Tes.)
HOPE CO.
& SONS
v. MOSER
LESCHEN
improve-
free
might
took it
an
the construction
from
the
is
of
it
ment
to smelters
hauled
1911,
regardless
any lien,
of
purview
he knew
whether
Civ. St.
of Rev.
within the
the
5621,-
giving
liens the construction of
the
art.
laborers and materialmen
paid.
upon any
improvement.
seller had not been
house or
cases,
cases,
[Ed.
see Mechanics’
Note.—For other
Mechanics’
[Ed.
see
Note.—For other
Dig.
Liens,
Dig.
342-347;
Dig.
Dig.
§
Dec.
Liens,
§§
Cent.
24.*
§
Cent.
Dec.
§
Phrases, 197.*]
definitions,
Eor other
see Words
8, pp. 7682,
4, pp. 3452-3460;
7683.]
Rehearing.
vol.
vol.
On Motion for
(§
127*)
7. Mechanics’ Liens
(§ 350*)
13. Contracts
—Enforcement
—Actions—Construc
—“CONTRACTORS”—WHOABE.
tion.
Plaintiff,
for
furnished
materials
recovery
who
of the value
action for the
the construction of an aerial
of
of materials furnished for the construction
an
superintendent
work,
oversee
tramway,
to show that
aerial
evidence held
purview
is a
St.
of Rev. Civ.
contractor within the
certain additional materials
extras
were
four
art.
and therefore had
were not
for
the contract.
as to
months
its
so
within which to file
its lien
contract
Contracts,
cases,
[Ed. Noté.—For other
see
perfect
Dig.
Dig.
1819-1823;
350.*]
Cent.
§§
§
Dec.
cases,
[Ed. Note.—For other
see Mechanics’
(§ 132*)
14. Mechanics’ Liens
—Establish
Dig.
Dig.
174-176;
Liens, Cent.
Dec.
§§
§ ment —Mode.
127.*
Where
materials
for
extra
were furnished
definitions,
Phrases,
and
7616.]
For other
see Words
although
tramway,
the construction of an aerial
p.
pp. 1534-1537;
vol.
vol.
contract,
there was a
lien
written
a mechanic’s
upon
of such
completed
payment
structure for the
(§ 132*)
S. Mechanics’
Liens
—Establish
perfected regardless
Filing.
must be
materials
ment —Time of
contract;
of the
as to
the contract
furnished accrues
A
for materials
debt
maturity
delivery,
the
not
time
the indebtedness
is no
there
last
the date
governing.
accrual;
fixing
con-
con-
time
sequently
struction
cases,
for
materials
[Ed.
the last
where
other
see Mechanics’
Note.—For
Liens,
132.*]
Dig.
Dig.
in-
190, 192-207;
not
were
§
aerial
§§
Cent.
Dec.
merely charged
were
in the contract but
cluded
account,
open
lien for them could
to an
Appeal
Court,
from District
Bexar Coun-
perfected
is filed with-
unless a sworn statement
ty ;
Judge.
months limited
statute.
Camp,
in the four
J. L.
cases,
Mechanics’
other
see
[Ed. Note.—For
Action
A. Leschen
Com-
&
Dig.
192-207;
Dig.
Liens,
132.*]
§
Dec.
§§
Cent.
pany against
others
Carlos
impleaded.
which other defendants were
From
(§
132*)
9. Mechanics’
'Liens
—Establish
judgment
named defend-
Filing —Contract.
ment —Time of
plaintiff ap-
others,
ant and
favor of the
furnishing
ma-
of the
A
contract
tramway required plaintiff
part
peals.
part,
an aerial
terials for
to furnish
and in
reversed
Affirmed
stipu-
superintendent at a
suitable
and remanded.
plaintiff
charge, payments
to be made
lated
superintendent performed
weekly.
many
services
parties
suit,
There
filing the
the'
four
time
within
written contract. Held
months
pleadings voluminous,
will not under-
that,
contract
take
adopt
but will
to state
detail
weekly,
payable
a lien
items
made
of the
each
accruing
only upon
within
the statement of
case made
those
could be
filing of the
of the time
four months
appellees,
much
brief
because it
shorter
contract.
equally
by appellant
than that
eases,
Mechanics’
other
see
[Ed. Note.—For
correct
Dig.
192-207;
Dig.
Liens,
§
Dec.
§§
Cent.
brought
appellant,
suit
“This
132.*]
foreign corporation,
permit
without a
(§
149*)
10. Mechanics’
Liens
—Establish
Filing
on written
recover
ment —
Notice.
statement for
a sworn
filed
Where
one
for material
labor with
contract,
materials not included
extra
Moser and for the
of additional
Carlos
value
give
lien
statement will
such
items
performed
labor
material
furnished and
superintendent.
services of the
cases,
after the execution of said
it
contract. The Del Carmen
said Moser
see Mechanics’
[Ed. Note.—For other
Dig.
Dig.
256-259;
Liens,
§
Mining
Dec.
Company,
Cent.
§§
149.*]
alleged
ap-
corporation,
an Arizona
pellant
(§
132*)
Liens
Mechanics’
—Establish
be liable on the contract
Right.
ment —Accrual
labor
material and
additional
time when
statute extends
While
ground
had as-
latter
furnished shall
for material
indebtedness
crue,
material was
time when the last
payment
it at the
the
as to fix
of said contract
sumed the
said
furnishing
delivered,
labor
Appel-
labor.
additional material
extend
not further
will
last
after the
min-
of the
lant made certain stockholders
ing
the indebtedness
of accrual
the time
defendant, alleging
parties
support
sub-
a sworn
lien
so as
material
months after
than four
more
statement filed
stantially
the Del Carmen
delivery.
last
permit
having
pany,
to do
out a
taken
cases, see Mechanics’
other
[Ed. Note.—For
partnership, and
Dig.
192-207;
Dig.
Liens,
132.*]
§
Dec.
§§
Cent.
partners and
said stockholders
that
liable
assumption
as such
reason
Property
—197*)
(§
12. Mechanics’
Liens
Subject
the indebted-
of the said
ness Moser sued
Lien.
mining company purchased from
by appellant.
Where
tramway, one end
for a
materials
defendant
of which
num-
made a
individual defendants
in which
to be situated
parties defendant,
stockholders
ber
interest,
purchaser
of the land after
it had
Rep’r
Dig. Key-No.
Dig. topic
Series
Indexes
section
in Dec.
Am.
see same
NUMBER
cases
*For otter
(Tex..
159 SOUTHWESTERN REPORTER
averring
nished is
December
items-
partnership
subsequent
up
was a
are for
to said date
liable,
tramway superin-
liable
all should be held
services
;
bearing
and each m'ade to contribute to
tendent
11,
the last thereof
March
date
any judgment appellant might
recover.
*3
1910. Leschen testified that the services-
Appellant
payable monthly,
further claimed a contractor’s and of Graham were
and that
materialman’s lien on
aerial
provided,
prices
the contract so
and
erected under the contract sued
on in the invoices for material
addi-
by
defendant Kincaid and
owned
tional to that
for in
called
the contract were-
in,
open
charged
said land. After the evidence
all
“as in
Said ac-
accounts.”
jury
the court instructed the
to render ver-
May
1910,
14,
count was sworn to on
and
except
defendants,
informed,
dict for all of
the de-
while
that
affiant
states that
fendant
verdict was so render-
Moser. The
cable
Min-
is owned Del Carmen
ed,
judgment appealed
and
it the
from ing Company, and that notice of
account
entered.”
due was sent to said
by
as
3296,
Statutes,
article
Revised
claim
Summary of Evidence.
is asserted in said account
the Del-
4,1907,
On November
Carlos Moser entered
assumed the
into a written contract with
Leschen &
A.
through
count or contracted the same
Meser-
Rope
Company,
duly
Sons
corporated
in-
plain-
agent.
T. H.
sent
Graham was
Missouri,
under the laws of
hav-
superintend,
tiff
the
the erection of
ing
permit
in
do business
where-
charge
He had full
by,
$24,720,
paid by
Moser
be
said
one-
discharg-
same, employed
erection
ed
and
third on November
one-third on Jan-
working
him,
they
those
were
services were
uary 15, 1908,
days
the remainder
paid by Moser.
Graham’s
operation
after
than June
is in
and not later
up
charged
Moser
said
bound company according to
con-
the terms of the
f.
itself to furnish
machinery
b.
Louis the
o.
ears at St.
tract.
rope
and wire
for a
hav-
On October
Min-
the Del Carmen
ing
length
28,790 feet,
an incline
awith
incorporation
incorporators
filed articles of
distance,
fall of 540 feet in that
be
erected
Arizona;
under the laws of
point
across the Rio Grande river at a
about being
Marbaeh, Henry Streuer, E. L.
John
Marathon, Tex.;
90 miles from
the same to Swazey,
and Charles
all residents
carrying
be used for
zinc ores from a mine
neces-
Texas.
said charter
point
in
Mexico
Texas above men- sary
being
An
be
to mentioned
follows:
changes
tioned. Afterwards some
were made
kept
Phoenix,
required
to be
at
office
and at various times extras were sold to
places
Ariz., but other officesand
of business
,St. Louis, resulting
Moser f.
b.o.
ears at
kept
might
San
Mexico,
Boquillas,
at
at
increase
$9,327.44,
his indebtedness to the extent
Antonio,
incorporators’,
Tex.,
which
at
paid
$40.60
might
stockholders’,
meetings
and directors’
by Moser. The contract contained the fol-
transacted;
corporate
be held
the
lowing clause: “To facilitate the erection
capital
$2,000,000,
stock was
fixed at
proper adjustment
and make
chinery,
in the ma-
20,000 shares,
up at
divided into
date of issuance or
you
thorough-
can
furnish
at
board
such time as the
ly competent superintendent
eight
dollars
prop-
designate
might
money,
of
erty, labor,
directors
per day
($8.00)
traveling
and hotel and
any
right or
other valuable
penses, payable
time and
currency,
in United States
thing;
gaged
to be en-
the nature
the business
expenses
to be
from date
branches,
as-
was:
all its
leaving
St. Louis and
until
return to
transporta-
saying, milling, smelting, and the
Louis;
charges
expenses
St.
such
to be
necessary
ore; owning
tion
all
and sale of
paid us
at
end of each week.” Also the
etc.;
appliances, tools, machinery, buildings,
following:
ownership
“The title to and
owning, operating, buying,
selling
tramway machinery
the above-described
estate, personal property,
real
ease-
classes of
Rope
remain in
Leschen & Sons
Com-
patent
ments, franchises,
rights, mining
rights,
rights
pany
way,
wholly paid
until the same is
for. Fur-
properties
rights,
water
thermore the A. Leschen & Sons
rights,
hereby given
undisputed
telephone, telegraph,
mill
trac-
are
free and
rights
premises
engines
roads, railroads,
pur- tion
to enter
conces-
sions, ferries, merchandising,
pose
moving
retaining
possession,
and all
or for re-
things necessary
carrying
gen-
said
material
on of a
default
payment business,
last
eral
made.”
as the
metals;
8, 1910;
con-
was filed on
of ores and
June
sale
foreign,
and afterwards
recorded
tracts
the United States
the Mechanics’
kinds,
governments; engaging
county,
Lien Records of Brewster
Tex.
and all
On
May, 18, 1910,
showing
person might
sworn account
items of business that a natural
prices
furnished,
thereof,
any part
extras
and bal-
could
world.” The
United States or
county.
capital
ance due thereon was filed in said
stock was made non-
The date
item
last
19,995.
of material
fur-
assessable. On December
Tes.)
HOPE CO.v. MOSER
& SONS
A. LESCHEN
unloading
building
n .shares
to Carlos
issued
terminals and
stock were
completion
wagon
fit
trac-
with an
of new
road
was in accordance
This
Moser.
Marathon,
engines
meeting of tion
from the terminals to
initial
(cid:127)agreement
Tex.,
on the railroad.”
whereof
incorporators,
terms
the
was to
following
cash
contract also contained
$97.50
stock
receive
provisions:
convey.
agreed
“That said
shall remain
properties which he
deposit
subscription,
bank to
of first
October
credit
dated
The stock
except
party
agreed
out for
balance
that one share
190S,shows
completion
wagon
incorporators
cable,
and on said
of said
of the other
each
taken
agreeing
buildings
out;
Scott,
road
above set
each
D.
Earl
one share
to
1908,
and received
completed
joint
December
share.
$32.50
party,
206 shares checks of first and second
for
bal-
and
new certificate
transferred
sold
*4
19,789
deposit
paid
$40,000
ance of said
first
shall
to
be
party
personal
Twenty-one
trans-
his
That
own
use.”
of
shares
his
.shares.
$40,000
Pfeuffer,
Mar- if
John
60 to
should not be sufficient to
Richard
ferred to
cable,
etc.,
towers,
Henry
10,
road,
Moser and for
was
then Moser
bach,
Streuer.
125 to
and
complete
expense.
conveyed
to
“All
to Del
same at his own
March
wife on
expense
n Carmen
mines, prospecting,
Company,
Mining
recited
of work in
for the
break-
ing ore, etc.,
January 1,1909,
19,789
the stock
of
after
to be com-
shares
of
-consideration
pany’s
per month;
company,
expense,
in Mexico
mines
not to exceed $800
various
of said
money
Moser,
party,
leasehold
as his
as well
advanced
first
he to be
owned
rights
proceeds
shipment
others,
contracts
also all
of
of
out
first
reimbursed
implements,
tools,
improvements,
properties.”
ore,
of ore
^sale
from said
of
The date of
transportation,
patio
all
given
or in
all
this
facts.
ore
contract is not
in the statement of
way therefor,
rights
all
tramways and
of
reports
April
stores,
engineers’
cables,
all
On
all
Carlos Moser and O. C.
Clamp,
including
projected railway,
purchasers
and
“all interest
trustee for various
of
rights
property
all
on the Ameri- stock
Moser,
agree-
and
from
of
said
entered into an
whereby $70,000paid by
river between
parties
Rio Grande
ment
can
side
said
Marathon, Tex.,
deposit
mines
stock
and
was
said described
and
to remain on
with the Frost
personal prop-
Bank,
and
and
National
to add
the
ited
assets
real
all
and to this sum Moser was
$10,000
-erty
every
days,
kind and character whatever
within 60
and to
performance
properties.”
(cid:127)appurtenant
obligation
depos-
to said mines
of said
and
subject
1,000
being conveyed
properties
of stock.
to
shares
It is recited in
Said
n debt to
Purchasing
that,
contract
Mexican
Ore
consideration of the
purchase
$116,870.95,
amounting
stock,
agreed
of such
York
to
Moser
New
to make
expenditures
September 1,
payable
bearing
certain
on or before
benefit of the'
cent,
mining properties
per
Moser
interest.
entered
transferred
him to the
whereby
Abbey
Mining Company,
Carmen
Del
into
with W. M.
and the follow-
portion
stock, ing
.Abbey
Moser’s
was to sell
are contained therein: That
Clamp
Abbey
certain state-
-in
to
which contract Moser
transfer to
3,600
Abbey
agreements
representations,
shares, being
purchased by
ments,
be
and
to
the stock
among
by Abbey
sales,
Moser;
others
and his associates from
used
that
Company
Clamp
Mining
other
Del Carmen
to make
that
transfers
stock
properties
mentioned;
Abbey
therein
in the
described
that
the owner of the
is to have an
option
purchase
conveyance
3,325
him
wife to said com-
to
and his
at $32.50
shares
Abbey per share;
parties
pany.
provided
represented by
was also
that
Clamp
years’
investigate
option
a certain time to
should
a two
to
should
the
purchase
5,375
papers
stock;
1,500
sat-
shares
Clamp
$40,000
credit
to the
transfer to
isfied should
to
Moser
shares
Bank, for
National
to enable
Moser
Alamo
Moser to use same for
own
capital
account;
3,000
Clamp
stock of individual
shares of the
to
(cid:127)which
sell
Company
2,000
perform-
be
should
the
transferred
shares in trust
secure the
$40,-
transportation
by Moser,
and the
ance Moser
contract, relating
a certain
deposited
fol-
.000
should be used
of ore
payment
purposes:
company’s
railroad;
“(1)
lowing
full
from
that
cable to the
deposited
pur-
$80,000
(cid:127)A.
Frost
Leschen
price
purchased
defraying
of the wire cable
from Bank was
used
ex-
chase
to be
pense
amounting
installing
equipping
properties,
thein for
about
the wire
said
n $17,000.(2)
payment
$3,000
L. cable and aerial
over the Rio
To the
completing
Yogelstein
$3,000
Grande and in
road for
suitable
n smallbills due for
expenses. (3)
engines
For
traction
to the
could be used in
from the end of the cable
expense
railroad,
freight
of said amount
the
tion of said wire
of erec-
taking
per plans
ore
cables,
from the mines
n specifications,
delivering
same to the first end of
said
and under the direction of
money paid
representative
rope
cable,
company,
but all
out of said fund
of said
includ-
expenses
ores,
loading
mining,
or other
of the .cost of two towers for
(Tex.
REPORTER
159 SOUTHWESTERN
athon,
essary
ary
equip-
completing
company,
and such other work as
nec-
other than
be
completing
complete plans
ship ore,
ping
said
sal-
cable
stations
expenses
fixed,
being
roadway,
returned Moser
and it
be
said
should
paid
proceeds
company
that same
be
net
of future
were to
out of
hand,
shipments
funds then on
reimbursed
ture-ore
necessary
but Moser was
be
should
dividends
of ore before
money
for,
stock;
enough
one-half
of same out of fu-
shipments;
as it
out of said fund to
engine,
to use
to haul cable
funds then on
one traction
three cars
hand be-
'
longing
traction,
complete
station,
development,
and to
Moser for the
railroad to
roadway
handling
ore,
agreed
ore from the cable
and haul
outlay
charged
railroad,
the
such
but such
should -be
should reimburse
expenditures
ship-
be for the account of
out of future
to Moser and not
ore
ments;
president
Company;
secretary
the Del Carmen
papers properly
properly
Clamp
have the
title
titles
transferred
have all
necessary
registered
things
company,
approval
to
to
and do
advice and
of
out of
Judge
Clamp,
title
authorize
vest
and to
to be
expenses
business,
charged
to funds on
transact
thereof
hand and
account
fund and be
to Moser.
come out
completion
Moser;
adequate
meeting
In the
minutes
a stockholders’
*5
transporting
railroad,
27, 1909,
for
held
of
facilities
and
ore to the
October
a memorandum
by Moser,
agreement
therefor
full
and
between Del Carmen
$25,000 faithfully
giving
pany, party
part,
Moser,
for
bond
to
of the
first
transportation
carry
party
for
part,
out his
contract
of the second
was entered
years, Clamp
minutes,
two
towas
release and deliver the
wherein it was recited that
per- Moser,
performance
to
stock held to
Moser the
to secure the
of his con-
transportation
transport
of
formance
contract.
ore,.
tract
to
to
had transferred
$10,000
sold,
Clamp 2,000
stock
worth of
was
thus
shares of Del Carmen
Company
$80,000 agreed.
equity
8,733
the trust fund
as
stock and
shares
by Clamp
option
was
then
There
no action taken
the directors
held
under an
con-
same, and,
tract
fail
tract,
of
Del
Carmen
to
should Moser
regard
perform
transportation
Lesehen
his said
con-
Clamp
indebtedness other than
then
as shown
was authorized to sell
meeting
April
2,000
equity
At a directors’
held
minutes.
and said
shares
stock
presi-
1, 1909,
apply
proceeds
8,733
purchase
a motion
carried
shares
to the
secretary
machinery,
equipment,
dent and
be instructed
once
and fa-
proceed
hauling
of the internation-
the erection
ore from the terminal
cilities
roadway
cable, making
unloading
per-
al
from
station to Marathon and the
develop-
Marathon,
forming
terminal of same to
said contract.
Moser’s
taking
mine,
meeting
ment and
out of ore from the
At a director’s
held December
place property
ship ore,
passed
in condition to
and
and
that as
a resolution
“the
necessary,
company’s
such other work
Tramway (cable)”
as
Aerial
would
operation
on
completed
ready
be authorized to draw
funds not be
February
then
bank for
work. Motions
Frost’s
before
ore
providing
pay
company
were also carried
that cheeks and
would
an in-
have
expenditures
company
Purchasing
drawn for
be stallment
to the Mexican Ore
signed
Clamp
February
Moser and
and counter-
on
therefore
signed by
secretary;
Palfrey,
necessary
again
Thos. B.
that became
the stockhold-
ask
secretary
president
be
instructed
for assistance. A motion was also
ers
car-
pay
president
St.
secretary
Lesehen &
the balance
Sons of
Louis
contract,
ried that the
on
vice
company
due for material on cable
amount- behalf
into
“enter
a contract
ing
approximately $17,000;
transportation
that a com- with Moser for
ore
appointed
mittee be
to draft an
from the mine bins on the Mexican side to
transportation
with Moser for
loading
ore the
of the
for
bins
aerial
unloading
from
per
terminal of
handling
the cable $1.25
ton and
over the cable
Marathon,
president
Tex.;
to
secretary purchase
to the bins on the American side
25 cents
per
ton,
keep
repair
for the account Moser
said Moser to
cable
engine
running
expense,
a traction
by
three
be
cars to
used and
order at his
usual
company,
Clamp,
excepted,
handling
and that
and wear and tear
and for
Palfrey
ground
be
to use such
funds as ore
at terminal on the American
may
per
same,
wagons
on
be
hand to
and when side into
actual
ton
cost
and for
transportation
loading
wagons
contract
ore
entered
ore into
at Marathon 25
per
roadway
into,
cents
and international
ton.
cable and
adjustment
meeting
completed,
held
Marathon
a call
to
to made
was At
proposed
January
company
29, 1910,
if the
Moser
Moser
be
between
and the
$65,000
covering
engine
ears;
loan
to the com-
cost of
would
that Pal- stockholders
frey
employed
$15,000
pany,
be used
of which
to assist Moser in the work
transportation
solving
problem,
erecting
laying
roadway
cable,
he would
to Mar-
Tex.)
A. DESCHEN & SONS ROPE CO.v. MOSER
from San
return from
they
arrangements
der date of
submit his
petent
000 to secure
are
cable as
will have
ham,
be
come down to
tors.”
I
day
donate Ms interest
tion
make
amount due and
for
thon,
manager.
pert
this
him
resolution
a further extension.
make a written
in the
necessary
powered
giving
directors as
operate
is further
and the loan
Moser shall be so
business and affairs of the
ject
of directors. T. B.
“I
Mining Company
cept
of
given
* * *
borrow
to incumber
should have full
to this
order to
structed to
agement
went there
February 16,
February
December
On
you
manager
was New
ready
transporting
directors at his earliest
going
without
accountant and have him make an audit
that are
company,
him
stock to such stockholders
asking
that he should have
Tex.
January
full
books
mechanical
an excuse
money
name
following provisions:
business of this
Mining Company as follows: “Un- our indebtedness to the A. Leschen & Sons
successfully carry
to make and enter
It was
to have
Mr.
make a written
it is
out to
adopted
been
A resolution was
loan. The amount was subscribed to ask
instructed
Antonio,
approval
transportation plan
February
the affairs of the
at
23,
At
and accounts of
accomplishing
ready
the conduct of its
there,
a
accept
made,
to do.
proper
*6
properly chargeable
with
Graham
inspect
York and came back last
and that
deposited
complete charge
once secure
committee
report
1909,
appointed by
created,
ore from the mine
the name of the
you
Boquillas
suggested
asking
charge
Judge
for not
engineer;
or that
1910,
Graham
to advance
to turn over.
charged.
and on
we will forward
saying
Moser
2d,
Palfrey
company,
However,
$6,000.
4,000
of Carlos Moser
Moser wrote
to the board of
plaintiffs
has written that he
Del Carmen
properties;
Palfrey
Brooks and
and such officer
Mr. Moser
control
that he
report
cable,
meeting
sending
on the business
thought
to see the cable
must
January
into
shares of
to take over
wrote
adopted
that Mr. Moser
the bank.”
said
all bills
He
To-morrow we
“Said
control of
competent
the board
bills
company,
business that
I
business,
authority
all contracts a
to the board
convenience. and
Del Carmen
of its board
wrote
company
engineer
you
have made
wrote
some
plaintiffs:
Upon our
as
appointed
to
them the
company.
he would
plaintiffs
wrote
facilities take care of and
manager
first
contain-
granted
Palfrey
stating rangement
money
Carlos
would all
cover-
Mara-
owing
direc-
man-
office
shall I
1910, by
com-
$15,-
Gra-
sub-
Fri-
em- Mr.
the B.
op-
in-
us
by ing
of and he asks us to
part,
pleted
part,
We
of the account
us have
this is
your
ment with
to
arrangement your
tary-treasurer,
urer of Del Carmen
he has made
men
pleted
knowledging receipt
vor of the 12th
our
with
rectors’
ance
your
lows: “We
tonio, Texas,
contract,
643.59,
company: “To-day
May 5,1909,
which
the
Carmen
constructed
cording
debtedness
and
company
reply
expert
available funds.”
dated
send us
closing
written to
we
check for
April
March
Plaintiffs
On March
February 26, 1910,
February 21, 1910,
could not settle
Palfrey,
pay
return mail and
beg
Moser for his
money
Moser wrote
treasurer,
myself
having
treasurer of
I
due.”
account. Del
him
as follows:
favor of the 16th
as follows:
we
Co.
March
you
ask
accountant
and in
some of which has been
statement
and the
done,
stockholders
off
meeting
Mining Company;
11, 1910,
wrote
may
beg
check for
inclose
over
account of
remittance
you
I
plaintiffs:
Manager.
all the indebtedness
he has and
our bills will be settled
answered on March
some
by your
16, 1910,
have a
received,
arrangements
had
you
11th,
inclosing
was then decided to
the 25th
Mr.
we ask
good
Del Carmen
Mr.
to
Palfrey, secretary
showing
your
will
last week and
balance all due under the
you
as the
say
inst. this a.
herewith
plaintiff company,
will
arranged
“Upon
very heavy obligations
audit the books of the
kindly
acceptance
Moser wrote
bills will be settled
T.
Moser wrote
in which he tells us
“I
the balance due.
I
require every
personally.
kindly
T.
Mining Company,
$6,000
of the letter and thank-
condition the cable
letter
that we would send
arrange
Mr.
C. H.
letter.
B.
kindly
accordingly
the cable
have made an
“We are
Moser wrote
my
if
day
statement of the
B.
advance to
work is now
following
balance due
Palfrey,
inst.,
receipt
you
write to our secre-
T. H. Graham
we therefore
arewe
Palfrey,
another statement
with the
on account.
failure
Mining Co.,
Tucker,
from Mr.
accepted
write to
for in
Mining
let us have this
to take care
under this
We had
will
October,
m. went to
all of the
advising
running
X
between
plaintiffs,
account.
I
oblige.
Under
brought
Tucker,
and talked
I
New
having
letter was
please
receipt
to
dollar of
secretary
our com-
Del
San
your
all com-
soon
* *
[*]
you
call on
cover?”
Moser,
as fol-
agree-
1907.”
treas-
Thos.
write
York
since
soon,
com-
soon
TMs
Car-
line
bal-
you
you
An-
$8,-
fa-
ar-
ac-
in-
in-
let
di-
up
REPORTER
(Tqx.
SOUTHWESTERN
absolutely pay
money accruing
lease
on the mines. The
act were
if this
a share
$1
many tramway
completed
February
great
you
about
necessary.
know
But
Palfrey
thought
ques-
¡stockholders
respond
1910.
tion
do not
testified he
and we
plaintiffs’
request
abso-
whether
bill should
until we
make the
wish to
lutely
out of the trust fund
to the directors
never
submitted
it.”
forced to do
Moser
of the Del Carmen
April 19,
wrote
Tucker
On
Company.
Brooks,
R. E.
direc-
desired
one of the
suggesting that,
if his stockholders
corpo-
tors,
company,
procure
time,
testified that the
as a
some
he should
months’
two
sign
body,
rate
never authorized the letter writ-
responsible to
note.
them who were
by Palfrey
approved
same;
ten
Sons
Leschen
Moser for the debt
n Company.
prior
never knew
the letter
plain-
April
Tucker as institution of the suit
heard
wrote
never
On
making any
anybody
“Sunday evening
arrive
there will
tiffs’
demand
follows:
here
prominent
except upon
upon,
party
stockholders the indebtedness sued
Car-
n who
present
Boquillas
meeting
go
to see
los
but was
down to
at
will
I will
time and
in which
first
it was stated that
and cable
.mine
your
I plaintiffs
letter.
speak
them
show
claimed a
lien
cable.
matter;
nothing
even
$80,000
here
can do
Brooks
testified that the
was set
they would apart
purposes
aggregate
.to San Antonio
I
to write
surely settle
will
particular
named,
being desig-
it in time.
not receive
amount
party returns
any particular
as the
purpose;
account as soon
nated
the time he
that at
Boquillas
next week.”
the end of
thought $17,000
(cid:127)from
was all that was
$80,000
Palfrey
testified the
due on the cable but ascertained afterwards
approved by Moser,
that Moser then
bought eight
'bills
.made
that Moser had
nine thou-
$50,000
pay the
an estimate
sand dollar's’ worth of “extras.” Out of the
$80,000
transpor-
remaining
$15,000for the
bills and
$16,975
fund
was sent to Leschen
$50,000
company,
was ex-
tation
Company,
the balance due
kept coming in
still
bills
hausted
on the
contract between said com-
many
by Moser,
still
was
which witness
K.’d
(cid:127)O.
pany and Moser.
unpaid;
they remaining
had,
that he
expected
It was
the cable would be
get
after
books from Moser
never able
completed by July
1, 1909,and an
n that;
were his
Moser told
begin paying
was made to
the Mexican Ore
Palfrey
right
personal
had no
books and
Company
1, 1909,
Purchasing
installments of
writing
(cid:127)them,
the letter
money
pro-
on October
(cid:127) company
to said fund out
he had reference
cured from
sales.
ore
The cable not
n
*7
made,
the
would be
remittances
of which
completed,
pay
the
unable
only
hand,
was the
which
fund on
.Moser
installments,
and the
borrowed
directors
explained
Palfrey
had.
later
fund
pay
money
installments;
two
certain of
n why
February 21,
letter of
wrote the
he
as
signing
company.
them
The stockholders were called
untary
as sureties for the
the fund we held
follows: “Because
upon
for vol-
Mr.
about exhausted
(cid:127)from
Moser was
subscriptions
with which the install-
in,
kept coming
Mr.
had asked
bills
Moser to let us
see and check
and 1
paid.
ment due December was
ary
Janu-
so we could
have the books
experienced, as
more trouble was
the ca-
so as to set-
over his accounts
money
completed,
more
had
ble was not
paid
I
what else was to be
tle —see
—-and
Purchasing Company
the Ore
to be
him a letter
so far as to write'
even went
Finally
prevent
of all mines.
forfeiture
got them;
books,
(cid:127)demanding
but I never
stockholders,
$65,000
borrowed from
the
for whom R. E. Brooks was
know
show we didn’t
letter to
wrote that
I
appointed
trus;
stood; I
let-
fund
think the
this Moser
'how
given to secure the
n terwas
deed of trust
tee and
individually
the Del Carmen
money.
repayment of the
Company any
Mining
ter,
than a Moser let-
more
Company
Mining
had on-
The Del Carmen
no
of the Del Car-
had
fund
because I
meetings
ly
agent
no
in Arizona. It held
about;
Company
Mining
made
to write
men
except
San
and
or directors
of stockholders
fund
in that letter to the Moser
no reference
Tex.,
Antonio,
no
and conducted
(cid:127)either, X think not.”
per-
property
had ño
in Arizona. It
kept
$65,000 had
Palfrey
an account
ore it sold
Texas.
$15,000
mit to
was under
fund,
which he testified
deliver the same
a contract to
(cid:127)
motor
com-
on construction of
Marathon;
;
on board cars
pany
payment
$50,000
bills
of Moser’s
through
Mining
to smelters
Texas
kept
hauled
then
the Del Carmen
no books of
he
n Company
City.
Kansas
or
moneys.
Oklahoma
had no
it
because
county,
n bookshe
in Brewster
kept
of land
tract
had on
front cover
tramway
portion of the
Mining
is situated
which
Co.’sStockhold-
“Del Carmen
words:
Grande, was
Rio
Transpt.
Texas side
Fund,
Co.” The Del
Texas
(cid:127)ers’
conveyed
n Ernst
Max B.
funds,
awarded
ex-
remaining
Kincaid
perhaps,
to defendant
(cid:127)cept,
administrator
dollars
a few
February 24,
voluntarily paid
consideration on
stockholders to
valuable
.funds
Tes.)
&
LESCHEN SONS HOPE
CO. v. MOSER
pellants by
in
pany. Some
it was
the
of
company.
cessfully
what claims
to
tion from
pleted,
bought
Mining
plated
corporation
appellant company,
impossible
funds.
that whether
company
trust fund
by
to deliver
Mexican Ore
proving
stockholders and Moser.
the
sum
debts remained
who
mining
should
chasing
Moser
bound
turn it over
be borne
with such
Moser.
er the Del Carmen
purchases
should
all
tonio,
McGown,
above).
ror
of Deed Records
Louis,
MOURSUND,
Jones,
the stockholders
successfully
agreement
such as
dealings
company $65,000,
appellant
off
fund,
indebtedness sued
had made
was used
instructed
interested
San
manager
individually,
himself
Mo.,
given upon
have been
constitute
and no
fund was borrowed
It
properties
such
Company
inadequate,
deed
such undertook
its
[1]
conduct the
by him. To
or for
Hocker,
Guinn &
directors
He concluded
Antonio,
appears
always
they
appellant. Denman,
agreement,
from
Moser was
were
and Scott &
or individual stockholders with
stockholders
discretion was
By
were
contended
him
Purchasing Company
claims
recorded in volume
between the
inadvisable
complains
This
conduct
to
unpaid,
J.
authorized the
dealings
for all
tbe first
necessary
the stockholders
complete
submitted
appellant
entered into
stipulated
long struggle
Hawes
necessary
McNeill,
(after
the directors
and it is clear
nor was Moser
Brewster
as such. After
from forfeiture
company;
or of
appellant.
directors
fund could be
the stockholders
trust fund.
before the Del Carmen
which was
$80,000
matter of
business
the stockholders
appellees.
fund,.it
and
Moser’s
to.the
that the issue
such
properties,
and the
that the debt
incorporated.
However,
Dodson,
stating
defendants
were
because
assignment
'to be
to raise
between certain
evidently
business of the
by
$50,000 of this
were
*8
that Moser was
a debt
County.
dispose
a lien to
to be
Angert,
corporation
acted for the
by appellant
of the
was contem-
had
E.
debts.
In
determining
manager
created,
of the com-
the facts
Franklin
of San
compliance
that Moser
This fund
agreement
it is
Fellbaum,
jury. All
including
a verdict
for stock
disposed
save the
securing
found
corpora-
assumed
fact he
because
by
to suc-
wheth-
vested secure
loaned
p.
except
agent
clear,
owed
com-
com-
Still
who
pur-
An-
ap-
off tain their
St.
er-
in
it
man to
Milan Mill
We hold
McDonald,
such
this
unless
L.
given
not think this incidental
another
of the
one
it call for
it was
petent superintendent
tract did not
of
the
make
installation and for whose
man,
with an
was to
rested
services of
to him
who erected
were
The contract
ments,
undertake the installation of the
after it
did
the suit could be maintained in
than June
completion
but
court
instructing
Moser and for the other
would have dismissed the case.
the refusal of
on its claim. As
indicates
fore sustain the first
company assumed the indebtedness should
paid
hausted,
could not sue in the state
of the books
dict
testimony
on hand out
count was not
he
[2,
R. A.
Ft. Worth
a
hold would mean
wrote
erection of the
accept
not
merely agreed
state,
against Moser,
plaintiff
3] The second
paid by
been
state
the effect of
The action of the
proper adjustment
a
machinery,
two of which were
the
supervise
merely proposed
state would have
desired,
involving
could maintain its
agreement
account
permit.to
(N.
was sold
suit.
account,
appellants promising
power
correct.
if the
submitted to
the sale of a
21 S.
such services
a verdict
corporation
at a certain
Co.
provide
Moser to
appellants
could be
S.)
having
Glass
the court
had there been sufficient funds
after its
paid.
machinery
be in
v.
whole,
man,
Flint
who would
as soon
D.
to hire and
cable
purchaser
Garten,
or else
interstate
do business in this state.
f.
but
machinery
for their
to install the
All
to furnish a
assignment complains
erection
it
526,
& Sand
operation
$50,000,
no other
o.
130
but
court
We
that a
had.
in
the issue
assignment.
necessarily
accept
finding
price.
furnished
Appellants
and the
defendants,
are entitled to-main
the sale and
the material for the
court in
b.
completion,
Walling Mfg.
for Moser and who
114
as an examination
order
Am. St.
payable
think,
the merits
it would have to
cars at St Louis.
thereof.
93 Tenn.
suit,
instruct the
instructed a
court,
jury.
appears
refused to
His
work. The con
the transaction
furnish
superintend
discharge
services Moser
forego
commerce. To
he would
Co.,
even
corporation
N. W.
be erected
by
funds,
No
and not later
sue in Texas
to take
to facilitate
because
last
holding
whether
viewing
adjustment
explanation
Smythe
retain
instead
before the
142 W.
a
same,
competent
Rep.
obligation
in install
delegated
held that
delivered
the court
did not
fund
sales
nor did
capable
684,
a
can be
Co. v.
S.
there-
those
state
com
days
buy,
jury
735;
care
if it
ver
Co.
the
the
14
do
in
in
in
159S.W.—65
(Tex.
159 SOUTHWESTERN REPORTER
Smythe
Mexico,
taking
v. Ft.
in
R. A.
Co.
ed
S. W.
26 L.
we do not think the
out
Co.,
Tex.) HOPE & SONS CO. MOSER BESCHEN it not permit, article other the suit business within If vision in of a tation it tions as made a contract in Texas Mining Company Deschen & Sons can be sued istence as to forceable courts of same. Therefore tiff, corporation by recognizing mining company within the able volve the ness of domestic stockholders plaintiff’s debt, under the comity fore W. within furnished accrues at the utes way, when said contract, months from the for which services were rendered four months of the accrual of the last item for this case the reference builders, Co. v. months services and June agreement fixing erected [7-11] [6] We are of the had done business bringing assume the sworn account right Leschen upon any meaning services and we see no reason for not debt bringing had four 19 S. hand, 8,1910. may adjust cannot be adjustment Nickells, is extended to such nonresident thus purpose. thereafter but Appellant or constructed corporations. and materialmen. will of material be such question, each Matthews v. constituted of a carrying and a lien could comity meaning terms items far that article shows W. suit to collect liens within the date was December of a showing of article transactions which do not This months expenses; cause as it existed within foreign payment wholly 24 Tex. Civ. suit date of the last assumed the fix such contract of held liable as of, the time seen that business?” Rope Company legally the makers thereof was an debts due case, *10 tramway superintendent, how on of the contract was filed within of article 5622 and there take the written contract filed in purview in in mechanics, opinion The debt for material Rope Company. that after its debt accrued of our statutes unnecessary. it payable lien. Baxter Dumber corporation Association, eourt was effect meaning action the state without improvement can would stand when there is no courts be found original but, place of its accrual. conclude that the date competition its it was the Del Carmen ness for material furnished shall accrue so filed within filed within foreign corpora- be fixed debt App. Prom this under, of article 745. that such ordinary merely Revised debt due the corporate arising as the date was fixed improvement partners charge contractors, adjustment in assumption be not do- contractor not defendant extending the tram Texas regarded although 83 Tex. thereon On the Texas. The statute extends the time when indebted- denies within of the the views herein alone, plain- bring authority given after 60 S. state Stat busi- This caid’s with quo- pay four four pro- said last ex- terest in the en- in- a of a lien. furnished was fixed within four months after and the lien count for an lien expenses cruing the lien is furnishing must which accrued the none the debt for same for material furnished. Del provides extend time of the accrual of items for services expenses, could be fact. the lien leged by ing establishing Claud Mining Company, rected manded for a parties that firmed. ness constituting being men mit land, tions the ed in for, said said titled leged thereon [12] Affirmed in Appellants In part. delivered but citizens of contract, business Texas and purpose pleadings was fixed Carmen written wholly Texas; parties fix it at superior addition to We conclude Kincaid exists for set No Some of the errors have been correct- land, J. here. judgment within do business filed in by filing subjected Carter, Motion for On lien out in detail. for which Kincaid was a stockholder lien time of accrual of indebtedness the lien R. E. great all other issues the and that no because neither Moser nor contract, indebtedness the time ask us to Mining Company additions to appellant exists lien to that of labor four new part, Texas trying knew, within four months of such a case in thereon. tramway receiver of the Del Carmen is reversed in does said issues this opinion; belonging the contract. alleging stated, to a that fix a trial, months of the corporation, thereafter reversed and remanded accrued, parties the issue of items as such contract itself the acts relied failed Texas, lien. under the contract take reversed, material exist Rehearing. lien lien make It lien the defendant It conducted its existing by business others will be had our statement of of provide and was claiming the last accordance for material nothing against Brooks, trustee, purchasing exists, any superintendent appellant upon purpose upon Kincaid which and therefore order to shall the Del Car- some correc- services so and also for There been to all other findings appellant’s and as case sworn furnished. organized judgment far as it those ac- fixing in Texas material also al- in said alleged unpaid virtue placed is no is af- is re- filing fix a a busi- Kin per- cor- the the do- en- in al- (Tes. SOUTHWESTERN REPORTER 159 1028 bought may upon mining company he lien at the time asserted change regard land; no value of little or see no reason to in that the lanil was our views complained except by speci- tram- the location of the to the matter fication reason of the first way thereon; a small sum that he of error. tramway knowing land, testimony was there- Appellant contends that there is deny estopped on; and that he was jury from which Kincaid could find that upon right plaintiff! its lien to enforce purchas-: knew the was on the upon exist or for said purchase him ed at the time of his said land. unpaid for, or, not, it he knew was if [13,14] Appellant earnestly put contends that had notice of such facts as would for in this case fur upon the material sued nished under the written contract entered to between Moser inquiry purchased the thereof when he in by us, lands. This contention is sustained appellant and, admit opinon absolutely but our it has no bear- ting that the entire sum contracted to be question appellant ing whether original contract for material under the land. can assert a lien Kincaid’s paid, material has been contends that Carmen Neither nor the Del made and orders thereafter any land which interest specified in the sworn account was fur subjected lien, and there was could be to a original contract. nished This con appellant no contract or transaction between testimony is of H. J. tention Leschen to the effect that no was entered into between the A. Leschen based appel- Max B. which would entitle and lant Ernst new contract land. to fix a lien on the Therefore liberty buy the was at same Kincaid Rope Company Moser; the the danger of' hav- Ernst’s administrator without original annulled, contract was taking place ing a fixed for transactions lien original con modified. sto.od appellant appellant or and Moser between complete tract was in itself call and does not company. absolutely evi- There delivery any for therein described. In further material than is bought land for that Kincaid dence pro fact, the contract company. agree vides that “there are no contracts or ments not opinion jury We are of the that the specifically specified” in the same. find from the evidence that the involving transactions of Mining Company transacting separate other material are distinct and Texas in so far it sold ore for part constitute of the contract. kept in within the also that it an office Texas recognized by appellant by filing This is meaning Re- 1314 article of the a sworn account for such items and not re 1911, and, vised Statutes of as testified lying upon filing of the contract. Leschen Brooks, never intended to take out prices testified the terial in the invoices for ma permit to do and still we furnished additional to that called liable believe its stockholders cannot be held as forcement of “open the contract were as in partners. Appellant en- contends for the places speaks In accounts.” several (Revised 1318 Statutes article material as additional to that called for 1911) of show that it is written and undertakes to contract, prices and he testified the ignored overridden we have or charged in the fair invoices constitute the article. The reads as follows: article said “No such or market value of the items of material. corporation can maintain suit is clear that the material is for which lien action, legal equitable, either or sought open to be fixed was sold on ac upon any demand, of the courts of this state count; and, deciding whether a lien has arising tort, un- whether out of contract such contract was fixed, apply applicable been we must the law made, or less at the tort articles of time to sworn itemized accounts and not that re committed, its had filed lating writing. salary to contracts in incorporation under the Graham was for in the chapter Secretary of this office original contract, therefore, in deter State, purpose procuring of permit.” same, whether a lien exists for plain According reading to the governed by applicable are contracts. As the the law to such placed said article and construction there- salary payable was made courts, merely on right our denies the according at the end of each week terms of to the bring of a suit itself, the contract each of said upon any arising cause of action from con- fixing items stands is so far as lien alone tort, tract such contract was made or concerned, and exists the lien prior filing tort of the ar- committed those items which became due within four incorporation purpose ticles of filing months of the of the contract. It fol procuring permit. Security provision Co. v. Nat. lows that the of the contract call Bank, 22; ing days 93 Tex. 57 S. W. Bank within one-third Smythe operation Holland, applies only 103 Tex. 126 S. W. after inis Co., contract, Co. v. Glass Sand to the material mentioned in all of S. W. paid for, which is last two cases it is held such the statutes therefore provision entirely pass discarded in do not make contracts void because made foreign corporation permit, the issue of the extent to which a a without a *11 y. Tes:) HARDING WEBB 252*) (§ Conform says it 3. Trial case the court first cited —Instructions'— ity by for Broker to Evidence —Actions (Statutes by article 745 was 1895, intended not Compensation. foreign 1314) deny cor- now article vendor, Though with listed land a who had comity usually
porations broker, thus extended himself and a sell the land authority, fact mere broker’s revoke the bring- throughout of the Union the states by purchaser interested a by tion; ant’s sale vendor because, state, ing of this in the courts suits revoca- not raise issue the broker did (Stat- intention, article if was refuse defend- such it not error was hence request presenting wholly issue. 1318) article utes now Trial, cases, Cent. see [Ed. Note.—P'or other holdings unnecessary. follows from the 596-612; Dig. Dig. 252.*] § Dec. §§ go to the laws cases — 260*) Requests (§ Instructions 4. Trial recognize — refusing the existence extent of Already by fob Broker Given —Actions corporations prescribe foreign Compensation. penalty tak- without for by one Where, broker action a real estate by they for vendor, consummated sale steps commissions permit, and that to secure verdict the court bring If a suit our courts. cannot Legislature sale was for vendor unless the should be the so, it could had desired to do authorized, very unless the terms terms changed deprive plaintiffs easily penalty their com- stock- were have added missions, error to defendant’s it refuse corporations lia- would holders of request presenting owner’s the issue arising partners ble demands right to sell. permit, in this state without business done Trial, cases, Cent. [Ed. see Note.—For other proper Dig. 651-659; Dig. We have to do so. Dec. §§ § 260.*] but it did not see penalty go authority no prescribed. than the Compensation — — (§ 56*) 5. Suffi Brokers ciency of Services. procuring If a broker cause of Appellant requests that find that Thos. we land, his absence at consummation sale of Pryor, Kincaid, Palfrey, F. B. D. T. W. Ike by the vendor was immaterial. Moser, Rheiner, R. E. Brooks J. Oarlos Brokers, cases, [Ed. Note.—Por other see Min- Dig. 85-89; Dig. were stockholders Del Carmen 56.*] Cent. Dec. §§ § prior ing Company 1, 1909. June since — 252*) (§ 6. Trial Evidence —Instructions prior by Compensation. mention minutes find Broker —Actions Where, by sale consummated action broker persons: a real estate 1, 1909, following June Car- on a commissions Rheiner, Brooks, los J. R. E. P. tending vendor, the to show that there were circumstances Palfrey. D. Ike Thos. B. W. Kincaid’s and changed terms were to defeat commissions, appear Pryor’s the submit broker of was not error to T. it names first time jury. issue to the January find the minutes of 1910. We cases, Trial, [Ed. other see Note.—Por Cent. Pryor were Kincaid evidence that Dig. 505, 596-612; Dig. §§ § 252.*] Dec. prior This 1909. June Appeal (§ 882*) En 7. and Error —Parties appellant’s finding is made deference Alleged titled Error. Error —Invited being request; if immaterial Besides, complain, since defendants cannot containing charges holding requesting was invited correct the stockholders the same issue. partners. held liable cannot be Appeal cases, [Ed. Note.—Por other see rehearing is overruled. The motion Error, 882.*] Dig. Dig. 3591-3610; § §§ Cent. Dee. — 57*) Compensation 8. Brokers Suffi (| — ciency WEBB et HARDING of Services. al. et al. a vendor with Where consummated a sale (Court Appeals of of Civil Ft. Worth. Texas. purchaser procured broker, whom Rehearing 1913. June Denied listed, voluntarily the the land was reduced 18, 1913.) Oct. price sale, to effect the broker en- Appeal (§ 1002*) and Error regardless to his titled commissions —'Verdict— Conclusiveness. good faith issue the bad in the reduction Where, broker’s in a action for commis- price. sions, charged, the court the evidence cases, Brokers, [Ed. other see Note.—P'or conflicting found point, jury on that that unless the 72; Dig. Dig. Cent. § 57.*] §§ Dec. procuring broker was cause Applica — — they (§ 252*) 9. Trial the sale should return Instructions a verdict bility Compen defendants, a verdict — Actions broker was Broker finding procuring cause, sation. that he appeal. employed joint is conclusive on Where a broker was one land, charge, owner of in an action cases, Appeal [Ed. Note.—Por other see commissions, broker for if the other own- Dig. 3935-3937; Dig. Error, Cent. §§ § Dec. notice, they ers had before consummated , 1002.*] rights, sale, they equal- of the broker’s — 57*) Compensation (§ 2. Brokers Suffi — ly liable, error, was not since the evidence war- ciency of Services. ranted inference without actual the they firm,, brokerage real Where a estate knowledge notice, of circumstances listed, efficient, pro- whom were the them therewith. which effected curing vendor, they of a cause sale cases, Trial, other [Ed. see Note.—Por Cent. listed, entitled to their commissions for the land 596-612; Dig. Dig. Dec. § 252.*] §§ though was vendor, sale, in order to make the compelled Appeal and include other (§ 1064*) and Error — Review- land. Error. Harmless cases, Besides, Brokers, [Ed. Note.—Por see the evidence tended to show that Dig. Dig. sell, giv- Cent. §§ Dec. their co-owner to § 57.*] thus Dig. Dig. *For topic other eases see same Key-No. section Am. NUMBER Dec. & Rep’r Series Indexes