Cason v. Goldsberry Bros., Inc.

63 S.W.2d 1054

• Court: Court of Appeals of Texas
• Decided: October 11, 1933
• Docket: No. 2322
• Status: Published

Opinions

COMBS, Justice.

This action was brought in the district court of Nacogdoches county, Tex., against Goldsberry Bros., Inc., a domestic private corporation domiciled in Nacogdoches county, Tex., by D. E. Cason, as plaintiff, alleging the execution of a certain lease contract for a tract of' land owned by plaintiff, the breach of said contract by said Goldsberry Bros., Inc., and the damages resulting to plaintiff therefrom, for which recovery was sought; and the petition contains a count in the alternative against Joe Goldsberry and Frank Goldsberry, as individuals, seeking damages for fraudulent misrepresentations, in the event it should be held for any reason that the lease contract was not binding on the corporation. To plaintiff’s petition each of the defendants urged a demurrer, which was sustained by the court, and, plaintiff declining to amend, the cause was thereupon dismissed; to which action of the court plaintiff duly excepted, and from which judgment he has prosecuted this appeal.

We gather from the pleadings that Golds-berry Bros., Inc., is a wholesale concern incorporated under subdivision 40 of article 1302, Rev. St. 1925; that said corporation, acting through Joe Goldsberry and Frank Goldsberry, entered into a lease contract with the plaintiff when they leased certain lots in the town of Nacogdoches for the purpose of constructing thereon a building and to operate a “Clarence Saunders store,” a retail establishment; that, after the making of the contract, they declined to go through with it, and the plaintiff sued for the loss of his prospective rentals under the lease.

From the briefs of the parties, we gather that the trial court sustained the demurrers on the theory that the lease contract was entered into by Goldsberry Bros., Inc., with the intention of conducting a retail business apart and a separate establishment from its wholesale business, and is therefore ultra vires and void. See subdivision 40, art. 1302, R. S. 1925. The pleadings simply allege the making of a lease contract and its breach by the defendant Goldsberry Bros., Inc. The contract itself is not set out in the pleadings. Assuming that a contract made by a wholesale concern for the lease of property upon which it intended to operate a retail store, separate and apart from its wholesale business, would be ultra vires, which question we do not pass upon, there is nothing in the pleadings before us which indicate that Goldsberry Bros., Inc., leased the plaintiff’s property with the intention of conducting a retail business separate and apart from its wholesale establishment. The petition was good on general demurrer.

The trial court properly sustained the ' demurrer of the individual defendants Frank Goldsberry and Joe Goldsberry. If there was any invalidity in the contract which they, as officers, entered into with the plaintiff on behalf of the corporation, it arises from the fact that the statute does not authorize a wholesale corporation to make such a contract. This was purely a question of law, which plaintiff was in position to know as much about as the defendants were. We think the trial court properly sustained the demurrer of Joe Goldsberry and Frank Golds-berry.

For the errors discussed, the judgment of the lower court is reversed, and this cause remanded as against the appellee Goldsber-ry Bros., Inc., but as to the other appellees the judgment is affirmed.