author: HARPER, C. J. HIGGINS, J.

text:
    CRAWFORD v. TEXAS IMPROVEMENT CO.
    (No. 685.)
    (Court of Civil Appeals of Texas. El Paso.
    May 17, 1917.
    On Rehearing, June 14, 1917.)
    1. Landlord and Tenant @=>285(4) — Evidence— Sufficiency.
    In a suit by a lessor to forfeit a lease for nonpayment of rent, evidence Mid to support a jury finding on special issue that the lessee’s failure to pay rent as stipulated in the lease was willful and persistent.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1197.]
    2. Landlord and Tenant @=>112(2) — Forfeiture oe Lease — Waiver by Landlord.
    That a lessor accepted the rent due for premises after taking proper steps and filing suit to forfeit the lease for nonpayment of rent is not a waiver of his right to repossess the premises unless the facts show an intention to waive.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 345.]
    3. Landlord and Tenant @==>112(1) — Forfeiture of Lease — Waiver.
    The mere fact that a lessor is lenient or indulgent in allowing rent to become overdue is not proof of an election to waive the right to forfeit under the provisions of the lease.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 343, 344, 346, 347, 349.]
    4. Landlord and Tenant @=>108(1) — Forfeiture of Lease-Waiver.
    Where a lease provided for forfeiture without notice for nonpayment of rent, the fact that the lessor was indulgent is not proof that forfeiture would not be taken without notice.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 333, 334, 339.]
    On Rehearing.
    5. Landlord and Tenant @=>285(4) — Rent-Evidence — Sufficiency.
    The fact that the lessee could pay the rent, but would not pay it, was sufficient to warrant a finding that his conduct was willful.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1197.]
    6. Evidence @=>589 — Qredibeuity—Parties.
    As the lessee was an interested witness, the jury were at liberty to disbelieve him.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2438.]
    7. Landlord and Tenant @=>108(1) — Leases —Forfeiture.
    The doctrine that courts of equity do not favor forfeitures will not be applied in favor of the lessee who has willfully and persistently defaulted in the payment of his rents, in the absence of some strong counterbalancing equity in his favor.
    [Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 333, 334, 339.]
    8. Landlord and Tenant @=>108(1) — Forfeiture of Lease — Estoppel.
    The fact that a lessee believed that his lessor would not, without notice, forfeit the lease for failure to pay rent, and that such belief was caused by the lessor’s conduct, does not raise any equity in favor of the lessee, who has willfully and persistently defaulted in the payment of rent, or estop the lessor to forfeit the lease.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 333, 334, 339.]
    9. Landlord and Tenant <§=2S5(5) — FORFEITURE 03? LEASE — FINDINGS.
    A jury finding that the lessee was negligent in believing that the lessor would not, without notice, forfeit the lease for failure to pay rent, was equivalent to saying that such belief was unjustified.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent.'Dig. § 1199.]
    10. LANDLORD AND ' TENANT <§=>285(5) — RENT —Findings—Inconsistent Findings.
    Findings that the lease was canceled be-cuse of failure to pay December and January rents, that the lessee in good faith believed that the lessor would not cancel for failure to pay rent without notice of intention to do so, that such belief was caused by lessor’s conduct, that the lessee was. negligent in having such belief, that but for such belief lessee would have paid such rents before they became delinquent, that the lessor never notified the lessee of intention to cancel the lease according to its terms, and that the lessor’s conduct was such that it was natural and probable that the lessee would believe that the lessor would not, without notice, forfeit the lease for failure to pay rent, were not in conflict with the finding upon the controlling issue that the lessor was willful and persistent in his failure to comply with his contractual obligations, and did not raise any equity in the lessee’s favor.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1199.]
    11. Landlord and Tenant <§=>108(2) — Rent —Foriteitube of Leasis — Tender.
    The rule that tender of rent by a lessee immediately after the filing of suit by the lessor is sufficient to relieve against forfeiture of the lease is not a rule of absolute application, and the trial court, in the exercise of its equity powers, may deny it to a willful and persistent violator of his legal obligations.
    [Ed. Note. — For other cases,' see Landlord and Tenant, Cent. Dig. § 335.]
    12. Trial <§=>215 — Instructions.
    Where the jury expressed a desii’e that the lessee keep his lease but pay all back rents, costs, etc., the court properly refused to instruct them ,how to answer special issues submitted to arrive 'at that verdict.
    [Ed. Note.' — For other cases, see Trial, Cent. Dig. § 481.]
    13. Landlord and Tenant <§=^285(4) — Rent —Evidence—SuEinciENCT.
    Evidence held to justify a finding that the lessee was negligent in believing that the lessor would not, without notice, cancel the lease for failure to pay rent in accordance with its terms.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. § 1197.]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Trespass to try title by the Texas Improvement Company against L. M. Crawford. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Jones, Jones, Hardie & Orambling and Sam B. Gillett, all of El Paso, for appellant. J. F. Woodson, of El Paso, for appellee.
   HARPER, C. J.

The Texas Improvement Company, a corporation, instituted this suit against L. M. Crawford, in the form of trespass to try title to, for possession of, and for rents due under contract of lease for a certain theater building in El Paso.' Defendant answered by plea of not guilty; that he held said property by virtue of a written lease for a period of 10 years, which began September, 1914, at a rental for the first five years of $300 per month; that he had paid and tendered payment of all rents due under the contract, etc. Plaintiff, in reply, says that the lease contains a forfeiture clause for failure to pay rent; that defendant had not paid his rents in accordance with the provisions of the lease, and for such failure plaintiff exercised its option to cancel same.

The case was submitted upon special issues, and upon the answers thereto by the' jury judgment was entered for plaintiff. For answer to the interrogatories propounded by the court, the jury found: First, that defendant’s failure to pay the rent as stipulated in the lease was willful and persistent; second, that the plaintiff by its conduct led defendant to believe that it would not forfeit his lease for a failure to pay the rent in accordance with the terms of the lease; third, defendant believed in good faith that plaintiff would not cancel his lease without notice of its intention to do so; fourth, that he was led to this belief because of the conduct of plaintiff ; fifth, that defendant was negligent in having such belief; sixth, that the defendant would have paid the December and January rent before they became delinquent but for such belief; seventh, that plaintiff did not notify defendant, prior to filing this suit; that it would cancel the lease for failure to pay rent in accordance with the terms of the lease; eighth, that plaintiff canceled the lease because of failure to pay December and January rents; ninth, that the conduct of plaintiff was such that under the circumstances it was natural and probable that the defendant would believe that the plaintiff would not forfeit his lease for the failure to pay rent without first notifying him.

Findings of Facts.

Appellee, being the owner of the Texas Street Theater, leased it to appellant for a period of 10 years, to begin September 1, 1914; the rental to be $300 per month for five years, and $350 per month for the second five years, payable monthly in advance, without demand. The lease contained the provision that “should any rent remain unpaid for as much as fifteen days after the same shall become due, it is agreed that, without demand therefor, * * * it shall be lawful for the lessor * * * to re-enter the premises, * * * and thereupon this lease shall cease and determine * * * and be utterly void.”

Appellant testified:

“I have been behind with my rents the past year a number of times, and Mr. Marr (agent of the company) has urged me to pay the rent, that they would probably have to bring suit, but he never appealed in his life that I didn’t do the best I could. I made my excuses that my rent had been held up here for three years on the Crawford, and that we had other obligations due us that we could not collect. They were glad to have me as a tenant and I kept digging. *. * * I do not deny that the board of directors of the Texas Theater Company instructed me in September, 1915, unless I took care of the back rents promptly, they would institute suit. At that time I was very much discouraged, and very much in tho notion of giving it up. Mr. Marr and Mr. Bassett were willing to wait until October 28th to get the rent paid. I guess I paid it then. I don’t remember the dates I paid the rent. I don’t remember how much I was due at that time. * * * I don’t deny that I was slow pay, but I have always paid. I don’t remember when I paid my rent on time. * * * I knew that taxes were coming due in November, December, and January, and I think, when most of his letters were written, I got him some money. I didn’t always pay him in full, but I would respond either right then or as quick as I could. * * * I do not deny that he wrote he had to pay out something like $2,000 tho 1st of January. * * * I know we paid the rent, but we have been slow. Circumstances over which I had no control — it was very largely because I did not have the money. I could have gone and mortgaged property and got tho money, probably, but I have done a good deal like other people have done to me. It was hard to get the money; business has been bad; our tenants have been slow. I think I am familiar with the lease; I have read it. I am familiar with the part that the lessor may terminate the lease by paying one year’s rent. I did not want the owners to become dissatisfied with — and it was not my purpose to delay the rent to make the owners pay me one year’s rent to get out. I never was advised either by letter or verbally, at any time, prior to the 8th of February, 1916, that the Texas Improvement Company would seek to forfeit the lease. I did not understand that if suit was brought it would be for cancellation of the lease. I understood it would be for rent, and treated it as such. They always acted as if they wanted me to keep the theater. They intimated that they did not want it.”

This suit was filed February 8, 19Í6. At that time rents were past due for December, 1915, January, 1916, and February, 1916. The February rent, however, was not subject to the default clause until the 15th. After the suit was filed, about February 12th, a check for $600 was delivered to Marr, then agent for appellee. This was returned to appellant, and on the 18th of February was tendered to and received by the attorney for appellee as December and January rents.

By assignments 1, 2, 8, 9, 10, 11, 12, 13, 14, and 15 appellant urges that the judgment should have been for him. Same will be disposed of by a discussion of the several propositions thereunder.

The first and most important question presented by these assignments and propositions is, Should the appellant be relieved from the forfeiture clause in the contract under the facts of this particular case? Where the provision in the lease is merely to enforce prompt payment of money, and if interest will compensate for the want of prompt payment, it will permit the payment to be made, and the forfeiture set aside, unless the breach of the covenant has been willful or the neglect so culpable as to amount to the same thing. Creamery Dairy Co. v. Electric Park Co., 138 S. W. 1106. See, also, note 69 L. R. A. p. 833, for general discussion.

Appellant has confessed his neglect, and the attendant circumstances in evidence are amply sufficient to support the finding of the jury to that effect.

This disposes of the third, fourth, and fifth, which urge that the answer of the jury that “the failure to pay the rent was willful and persistent”' is contrary to the great preponderance of the evidence.

Appellant further urges that the court should have instructed a verdict for the defendant for the reason that he having paid the rent for January and February to plaintiff’s agent, and the money having been retained for several days without objection, it was an acceptance and waiver of right to forfeit. That the lessor accepted the rent due for the premises after taking proper steps — filing suit to forfeit the lease for cause — is not a waiver of his right to repossess the premises unless the facts show an intention to waive. Moses v. Loomis, 156 Ill. 392, 40 N. E. 952, 47 Am. St. Rep. 194. Defendant was several times notified that unless he paid his rent promptly suit would be brought. And the only thing in this record which could have been considered by the lessee as a cause to think the lessor would not enforce his right to forfeit is the mere fact that the lessor had been very indulgent in allowing rents to become overdue, and the weight of authority is that this is not proof of an election to waive. Jones, Landlord & Tenant, § 498.

The sixth is that the finding of the jury that defendant was negligent in believing that plaintiff would not forfeit the lease without notice is contrary to the preponderance of the evidence. The proposition is:

“It appearing from the undisputed evidence that appellant and appellee, by their course of dealing with reference to the payment and receipt of the rent for the Texas Grand Theater, had acted without reference to the clause in said lease providing for a forfeiture of the leasehold for failure to pay rent as it became due for a period of over two years, and at no time during said period had the appellee, by word or act, manifested that it would in fact insist on the strict compliance with the terms of said lease, and that it would declare a forfeiture for' failure to pay rent as it’became due without first notifying appellant', and the belief of appellant that appellee would not cancel his lease for failure to pay rent in accordance with tho terms of the lease without first notifying appellant of its intention to do so was such a belief as an ordinarily prudent person would exercise under the same or similar circumstances, and therefore it was not negligence on his part to have such belief, and the answer of the jury to-question ‘D’ is without evidence to súpport it.”

The answer is that the mere fact that the lessor is lenient or indulgent is not proof of election to waive right .to forfeit, and likewise is not prooí tliat the forfeit would not be taken without notice, especially in a case like this, where the lease irrovides that it may be done without notice. Jones, Landlord & Tenant, § 499; O’Connor v. Timmermann, 85 Neb. 422, 123 N. W. 443, 24 L. R. A. (N. S.) 1063, 133 Am. St. Rep. 668.

The seventh is that the court erred in rendering judgment upon the answers of the jury because they are conflicting, in that the finding that the defendant was negligent in believing that the plaintiff would not forfeit without notice is in conflict with findings “second,” “fourth,” and “ninth,” 'above quoted. In view of the holdings above, that the evidence is sufficient to sustain the finding of the jury that the failure of appellant to comply with the provisions of the contract in payment of rents was willful and persistent, and that this was sufficient cause to forfeit the lease, and in view of the further finding that the facts in the record do not constitute proof of intent to waive its right to forfeit, the effect is to hold that there are no facts in the record upon which to base the findings charged to be conflicting.

The seventeenth urges that the matters shown by the following bill of exception constitute reversible error:

“Be it - remembered that on the trial of the above styled and numbered cause, after the jury had retired to consider of its verdict upon the issues submitted by the court, and after the jury had been deliberating some three or four hours in the jury room, the jury sent into court the following request: ‘It is the wish of the jury that Crawford be allowed to keep his lease, but pay all back rent, court costs, attorney’s fees, and such like. Now comes the jury, and asks instructions how to answer the questions to arrive at that verdict.’ And the court sent the following instruction to the jury: ‘Gentlemen: Your question cannot be answered by the court;’ and then left the room after said communication between the court and the juiy, and the jury returned into court the verdict upon which the judgment in this cause is based, and the defendant excepted to the action of the court in overruling the nineteenth ground of defendant’s amended motion, for a new trial, for tho reason that by reason of said facts it was evident that the jury did not follow the instructions of the court,” etc.

The proposition is:

“It -being apparent from the answers of the jury to the issues propounded, and from the communication sent by the jury to the court, that the jury intended to answer the questions propounded to it by the court in such a manner as to give appellant the possession of the Texas Grand Theater property under his lease, and give the appellee his rents, costs, and attorney’s fees, tho court erred in rendering judgment on tho findings of the jury for appellee for the possession of said property.”

It is apparent that appellant would have his verdict regardless of what the jury believed the facts to be upon which to base it. They have found the fact to exist which constitutes the basis for appellee’s judgment, yet forsooth, because the jury said they wanted to find for the appellant, counsel would have us set it aside, whether the jury believed the facts justified it or not; in fact, when the jury find that the facts do not justify it. This is a forceful demonstration of the reason for submitting causes upon special issues.

The eighteenth is without merit.

Finding no error in the record, the cause is affirmed.

On Rehearing.

HIGGINS, J.

I concur in the action of the court in overruling the motion for rehearing, but desire to indicate my views upon what I conceive to be the controlling issues and questions in the case. The action was in trespass to try title filed February 8, 1916, by Texas Improvement Company, appellee, against Crawford, appellant, to recover possession of that portion of a certain building in the city of El Paso known as the Texas Grand Theater. Appellee, by written contract dated April 27, 1914, leased to appellant that portion of the building in which the theater is situated for a period of 10 years from September 1, 1914, for the total sum of $39,000. For the first five years appellant agreed to pay $3,600 per year, payable in monthly installments of $300, payable in advance each month. The lease recites that it was the intention “that the rents payable under this lease shall be payable in monthly installments in advance of the first day. of each month, beginning with the first day of the term of this lease.” The lease contains the following further provisions:

“Should there be any default in the payment at any time, of any rent due, or any part thereof, or should there remain any rent unpaid for as much as fifteen days after same shall become due, it is agreed that, without demand made therefor, or if said lessee shall assign this lease, * * * it shall be lawful for said lessor, its agents,1 successors, or assigns, without written notice or demand, into the said premises to reenter, and the same to have again, repossess, and enjoy as in its first and former estate; and thereupon this lease, and everything herein contained, shall cease, determine, and be utterly void, except the lessor, its agents, successors, or assigns, shall not -be deprived of tho right to collect all rents which may be then owing the lessor or its assigns, nor shall said lessor, nor its assigns, be thereby deprived of any lawful claim which it may have for damages on account of any such action of said lessee.
“.Said lessee covenants and agrees with said lessor, its successors and assigns, as follows: Said lessee will pay the rents in the manner and at the time hereinbefore specified, unless said premises so leased shall be destroyed or rendered untenantable by fire or other unavoidable accident, in which event the rent for such time said premises are so untenantable shall not be paid. * * *
“It is hereby expressly understood and agreed that, if said lessee shall fail to pay the amount of rent herein provided to be paid, or shall fail to pay any installment of said rents, .for more than fifteen (15) days after same becomes due, or shall refuse or neglect to do any of the things herein provided to be done or performed by him, or if said lessee shall refrain from doing or performing anything herein agreed to be refrained from being done or performed, then and in such event the said lessor, its successors or assigns, may and can, at its or their option, declare this agreement and lease canceled and annulled, and thereupon this lease, and everything herein eon-tained, shall cease, determine, and be utterly void; but the lessor, its successors and assigns, shall not thereby be prevented from collecting any and all rents which may bo due hereunder up to the time of said termination of this lease.”

The appellee based its right of recovery upon a forfeiture declared by it on account of the alleged failure of Crawford to pay the rental installments for December, 1915, and January, 1916.

The case was submitted to a jury upon special issues. The issues submitted in the main charge, with the jury’s answers, are as follows:

“No. 1: Do you find that defendant L. M. Crawford’s failure to pay the rent stipulated in his lease was the result of gross negligence, or was willful and porsistent? Answer: Willful and persistent.
“No. 2: Do you find that the plaintiff, by its conduct, if any, led the defendant to believe that the plaintiff would not forfeit his lease for a failure to pay the rent provided for in the lease, in accordance with the terms thereof? Answer: Yes.”

At the reguest of Crawford, other issues were submitted which, with their answers, read:

“Special Issue A: Do you find that the plaintiff in’ this case canceled defendant’s lease because of failure to pay the December and January rents? Answer: Yes.
“Special Issue B: Do you find that defendant in good faith believed that plaintiff would not cancel his lease for failure to pay rent in accordance with the lease without first notifying defendant of its intention to do so? Answer: Yes.
“Special Issue C: Do you find that such belief, if any, on the part of defendant, was caused by conduct, if any, of the plaintiff? Answer: Yes.
“Special Issue D: Do you find that defendant was negligent in having such belief, if any ? . Answer: Yes.
“Special Issue E: Do you find that but for such belief, if any, defendant would have paid the December and January rents before'they became delinquent? Answer: Yes.
“Special Issue P: Do you find that plaintiff over notified defendant prior to filing suit in this cause that it would cancel the lease for failure to pay the rent according to the terms of the lease? Answer: No.
“Special Issue G: Do you find that the conduct of the plaintiff, if any, was such that, under tho circumstances, it was natural and probable that the defendant would believe that the plaintiff would not forfeit his lease for the failure to pay ’rent according to the terms of the lease without first notifying defendant of such intention? Answer: Yes.”

Upon these answers judgment was rendered in favor of appellee for the premises and rents.

Appellant contends that the finding that he willfully and persistently failed to pay tlje rent stipulated in his lease is contrary to the evidence. Upon this phase of the case the evidence discloses these facts: Appellee’s rents were collected by its agents, Jas. L. Marr & Co. Crawford, it seems, lived in To-peta, Kan. The rent for December, 1914, was not paid when due, and on December 18th the agents wrote • Crawford in regard thereto, and on December 30th he forwarded chect to cover. The rent for January, 1915, was paid January 29th. On February 26th the agents wrote Crawford, requesting payment of the February rent, and he remitted to cover February 27thí' The rent for March, 1915, was not paid until remittance was made on April 19th. On Aprií 21st the agents wrote, requesting payment of the rent for that month, stating that the money was needed to pay taxes. On May 4th the agents again wrote Crawford, advising that they had not yet received the April rent. On May 12th the agents again wrote him, requesting remittance of the April rent. Some time be'tween May 12th and May 19th the rent for April was received. On May 19th the agents wrote, requesting payment of the May rent, stating that they would have to have the money promptly, as they had a large interest payment to make in June. On June 1st the agents again wrote, requesting payment of the May and June rent, and advising that they had a semiannual interest payment to make on a $23,000 mortgage against the property which was due the first week of July, and that it would be necessary to have in all the rents up to that time; that they were in urgent need of both these months’ rent, and requested Crawford to let them have check by return mail to cover. On June 18th the agents again wrote Crawford that they had to pay this interest,’ and were in urgent need of the May and June rent, and requested check by return mail. On June 26, 1916, Marr & Co. wired Crawford that the rent for-May and June had not been paid, and that the parties insisted on prompt payment, and could not let the account run in that manner. On August 5,1915, the agents wrote Crawford that his rent was in arrears for four months, and amounted to $1,200; that the company was in urgent need of money, and that it would be impossible for them to let the rent run in that manner; that they did not desire to take any action towards collecting this legally, but if they did not hear from him in a short time would have to do so. They requested an answer by return mail, with one-half of the amount due, if not all. On September 24, 1915, the agents wrote Crawford that the board of directors of ap-pellee had instructed them to notify him that unless the back rents were taken care of promptly they would institute suit against him. On September 25, 1915, Crawford made a remittance, but the amount thereof does not appear. The rent for July, 1915, was paid by remittance made October 4, 1915, in response to previous request from agents. On November 1, 1915, Crawford remitted $300 to cover rent for August. On September 16, 1915, the agents wrote Crawford, reminding him that he was then four months in arrears, and requesting cheek for at least $600. On November 24th the agents wrote Crawford, requesting that he let them have a couple of months’ rent at least, as it was needed very. badly. -On December 6, 1915, the agents wrote Crawfofid that they had some very large payments to make the first of January, amounting to something like ■$2,000, and that thejf expected to get most of this from his rent account, and insisted that he send some rent on his account by return mail. On December 28,1915, the agents wrote Crawford, calling his attention to the fact that early in December they had written him that they had to make some very large payments early in January, and that they would expect him to have his rent account paid up in full; that at the present time there were three or four months due, and that they must insist that some action be taken by him to get his rent paid up. On November 9, 1915, Crawford remitted check for $300, and on January 22, 1916, he remitted a check for $300 to cover the rent for the previous November. In some of the letters written by Crawford to Marr & Co. in response to those noted above, he excused his failure to pay his rent by the statement that the theatrical business had been very bad and that business conditions generally were bad.

Upon a trial of the case, Crawford testified that he had been operating the theater since some time in 1908, when he first rented it; that Mr. Marr had, at different times during the past year,. written him to pay the rent; that they woul'd probably have to bring suit, but that Marr had never appealed in his life that he did not do the best he could; that he made his excuses that his rent had been held up here for three years on the Crawford Tíieater, and that they had other obligations due which could not be collected. He denied that he was waiting for the determination of the Crawford Theater rent suit. He did not deny that the board of directors of ap-pellee instructed him in September, 1915, that they would institute suit unless he took care of the back rents promptly. He said that at one time he was behind $2,000—that was prior to the present lease; that he could not remember when he paid his rent on tim'e; that ho paid the rent, but had been slow, because of circumstances over which he had no control, largely because he did not have the money. He admitted that he could have gone and mortgaged property probably, but he had done a good deal like other people had done him. It was hard to get money— business had been bad. His tenants had been slow. That he had borrowed probably during the past year between $30,000 and $40,000 to conduct and carry on the business, part of which had been repaid from time to time.

The evidence detailed shows beyond controversy that Crawford was persistently delinquent in the payment of his rent. But was he willfully so? The rent installments were obligations which he was legally and morally bound to meet in advance of the first day of every month. When a man ought to pay, can pay, and won’t pay, this is sufficient to warrant a finding that his conduct is willful. Of itself, it evidences a bad motive and evil intention. Especially, when he persists in such conduct without adequate justification. Such persistency evidences that he is acting designedly and intentionally. According to Crawford’s own testimony, he could have paid. He seems to have had a good borrowing capacity. But appellant insists that his own uncontradicted testimony shows that business had been bad, the collection of rent slow, etc.

This contention overlooks the fact that he was an interested witness and the jury at liberty to disbelieve him. And, further, if they believed his testimony, they may not have believed that such facts constituted adequate justification for his conduct.

Appellant cites numerous authorities to the effect that courts of equity do not favor forfeitures, and refers to cases where the courts have relieved against forfeitures in lease contracts where there has been a willful failure to pay rent. The correctness of these authorities is unquestioned. But in order to justify the application of this doctrine in favor ‘of a lessee who has willfully and persistently defaulted in the payment of his rents, there should be some strong counterbalancing equity in his favor. It is true appellee was very indulgent to Crawford, and long forebore to exercise its legal rights against him. Crawford evidently deliberately presumed upon its forbearance. 1-Ie would respond to the requests for the payment of rents only when it seemed likely that the patience and forbearance of his lessor was1' reaching an end and upon the verge of exhaustion. This indulgence upon the part of appellee should not be seized by the court as a reason for denying the enforcement of its legal rights against a willful and persistent violator thereof. I can see no equity 'in his favor which would justify the court in so doing. It is true the jury found that the plaintiff, by its conduct, led Crawford to believe that it would not forfeit its lease for his failure to pay his rent; but there was nothing to justify such belief, except thq extreme forbearance and indulgence of appel-lee.

The jury also found that Crawford in good faith believed that plaintiff would not forfeit the lease for failure to pay rent without first notifying him, of its intention to do so, and that such belief was caused by plaintiff’s conduct. It does not occur to me that this raises1 any equity in his favor. There was no obligation upon plaintiff’s part to give any such notice, and in response to special issue D the jury found that defendant was negligent in having such belief.

This latter finding is equivalent to saying that such belief on defendant’s part was unjustified. The answers to issues 2, B, C, E, E, and G are upon minor and noncontrol-ling questions, and in tlie light of this record i raise no equity in defendant’s favor.

Such answers are not in conflict with the finding upon the controlling issue in determining the rights of the respective parties, namely, Was Crawford willful and persistent in Ms failure to comply with his contractual obligations?

The record discloses that, immediately after the filing of this suit, appellant tendered all past-due rents, with interest and court costs, and has maintained said tender, and upon the trial tendered and paid into court all rent due to that date, together with interest, costs, and attorney’s fees. This, it is contended, was sufficient to demand that the court relieve against the forfeiture. Ordinarily this is sufficient. But it is not a rule of absolute application in all cases, and the trial court, in the exercise of its equity powers, might well and properly deny it to a willful and persistent violator of his legal obligations.

The day after this suit was filed, H. R. MeClintock, appellant’s agent in El Paso, wired him of the filing of the suit. On February 10, 1916, appellant mailed Mr. Marr cheek to cover the rent for preceding December, which was accepted and received by Marr on February 11th as the rent for the preceding December. On February 12th check for $600 was sent to cover the January and February rent, and was received and accepted by Marr about February 13th. It was held until February 15th, when it was returned to appellant, Marr stating to appellant’s attorney, in the meantime, and after he had received said check, that he had sent this check for deposit, to the credit of appel-lee, or words to that effect. On the 18th day of February, when appellant received the returned check, he wired Mr. Gillett, his attorney, who on that day tendered to appellant’s attorney the amount of the returned check, $600, in gold, which was for January and February rent; $300 of this sum was accepted as January rent, and the February rent was refused. Whether or not Marr knew that this suit had been filed when these, remittances were received by him is not apparent. Appellant insists that these facts show a waiver of the right of forfeiture. This contention is properly disposed of in the original opinion. No error is- shown by the matters complained Of in the seventeenth assignment discussed in the concluding portion of the original opinion. It was the sole duty of the jury to find the facts upon the issues submitted to them. Upon the facts so found, it was the duty of the court to render the proper judgment adjudicating the rights of the parties1.

The court properly refused to give the instructions requested by' the jury,

I regard the evidence ample to support the jury’s finding in response to special issue D, that Crawford was negligent.

I believe the proper disposition of this appeal is controlled by the conclusion reached upon the questions above discussed. A very lengthy brief was filed by appellant, together with a supporting written argument. Many authorities are cited and discussed, and in the motion for rehearing it is requested that we discuss the various propositions advanced in the brief and the supporting authorities, and point out the distinguishing features of this case from these authorities. It seems to me that the proper course to pursue is for the court, as best it can, to decide upon the controlling questions in a case and confine the discussion thereto; that it is ordinarily unnecessary to point out the distinguishing features of numerous cited authorities, as it serves no useful purpose, and protracts an opinion to an unconscionable length.

No authorities have been cited herein, as I deem those cited in the original opinion support the conclusion reached. Each member of tMs court has' given careful consideration to the merits of the appeal, and such consideration was given before the original opinion was handed down. The conclusion reached was the result of the consideration so given, and, while such conclusion may be erroneous, such error, if any, is not the result of any lack of proper consideration, nor of a failure to appreciate the strong presentation made in appellant’s behalf by his counsel. Ordinarily, I feel that the court is under no obligation to give express assurances of this nature, and do not feel that we are under any obligation to do so in this case, but that it is not inappropriate to do so. The court must make that disposition of an appeal which, as it understands the law, should be made, and this action must be taken without any other consideration than a’ desire to dispose of the case as the law and facts demand.

The writer has a high respect and regard for appellant’s counsel, and is prompted thereby to make the assurance indicated, and because the motion for rehearing would indicate that possibly counsel felt the proper consideration had not been given to the appeal.

The foregoing is adopted by the entire court, and handed down as its opinion on rehearing.
      @=>For other oases see same topic and KEY-NUMEER in all Key-Numbered Digests and Indexes

      ©xsFor other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALE, J.

license: Public Domain

text:
    MILLSAPS v. JOHNSON et al.
    (No. 1153.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 16, 1917.
    Rehearing Denied June 13, 1917.)
    On Motion for Rehearing.
    1. CORPORATIONS <&wkey;499 — Failure to Pay Franchise Tax — Right to Sue or Defend —Statute. .
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 7399, providing that when a corporation fails to pay its franchise tax, and the forfeiture of its right to do business in the state has been properly recorded by the secretary of state, it cannot sue nor defend a suit, except one to forfeit its charter, the secretary of state must enter on the margin of the record in his office the words “Rights to do business forfeited,” and the date of the entry, before the company’s right to sue or defend for nonpayment of its franchise tax is denied.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1910, 1911, 1913-1919, 2030.]
    2. Corporations <&wkey;592 — Dissolution—Failure to Pat Franchise Tax.
    The failure of a corporation to pay its franchise tax does not ipso facto work a dissolution.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2373-2375, 2378, 2379, 2381, 2390, 2401.]
    3. Corporations <@=^211 (6) — Stockholders’ Suit — Pleading—Allegation.
    In a suit by corporate stockholders, the petition alleged that a majority of the directors, without the knowledge and consent of the stockholders, but at the direction of a defendant, conveyed to another defendant, as trustee for the benefit of the creditors of the corporation, all of the assets of the company, and that the directors, without the consent of stockholders, agreed that the private 'trustee should convey the property to a creditor of the company to liquidate the company’s debts at 50 cents on the dollar. Held, that the allegation was that the company had made a chattel mortgage for the benefit of its creditors.
    [Ed. Note. — For other cases, see Corporations, Cént. Dig. §§ 820, 821.]
    4. Pleading <&wkey;34(2) — Specific Allegation.
    Specific allegations will control a general statement in a pleading.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 68.]
    5. Corporations <&wkey;210 — Actions—Parties— Trustee foe Creditors.
    Where a corporation did not make a general assignment for the benefit of creditors, but made a conveyance in trust to a private trustee for creditors, title to a cause of action against a director of the company for corruptly disposing of its assets was vested in the trustee.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 808-813.]
    6. Trusts &wkey;>61 (3) — Termination.
    Where a corporation conveyed its property, in trust to a private trustee for the benefit of creditors, the trust terminated when the property was sold and the debts satisfied.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § S5.]
    7. Corporations &wkey;>206(4), 211(3) — Stockholders’ Action — Demand for Suit on Directors.
    In a stockholders’ suit, if the facts as alleged show that defendants charged with wrongdoing constitute a majority of the directors or managing body at the time of commencing suit, or that the directors, or a majority, are under the control of a wrongdoing defendant, so that refusal of the managing body, if requested to bring suit in the name of the corporation, may be inferred with reasonable certainty, the stockholders’ action may be maintained without alleging or proving any notice, request, demand, or express refusal.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 795, 816.]
    8. Corporations <&wkey;212 — Actions—Presumption of Ownership of Realty.
    In a stockholders’ suit, the court must presume that the company’s assignment to a private trustee would not have undertaken to convey realty unless the company really owned it.
    9. Corporations <&wkey;455 — Common-Law Mortgage — Seal.
    Where a corporation’s attempted assignment of property to' a private trustee for sale for the benefit of creditors was void as a conveyance under the statute, being a common-law mortgage, it was no.t void as such because of the company’s failure to authenticate it by the corporate seal.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1801-1803.]
    10. Corporations <&wkey;210 — Stockholders’ Suit — Pleading.
    In suit by corporate stockholders to recover property of the company wrongfully disposed of by a director, the company, dissolution of which was not set up in the pleadings nor established by the facts, was not only a proper but a necessary party, and an assignee of the company as private trustee to pay specified debts of the company was not a proper party.'
    [Ed. Note. — For other eases, see Corporations. Cent. Dig. §§ 808-813.]
    11. Trial <&wkey;255(13) — Instructions — Failure to Ask Special Charge — Substantial Omissions.
    Whore defendant failed to ask a special charge, supplying an omission in an instruction, he cannot complain of the omission, though the definition omitted was necessary.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 639.]
    12. Corporations <&wkey;212 — Stockholders’ Suit — Domination of Directors by One-Sufficiency of Evidence.
    In suit by corporate stockholders, evidence held sufficient to sustain the jury’s finding that a defendant, a director, improperly dominated and controlled a majority of the directors.
    13. Corporations <&wkey;213 — Stockholders’ Suit — Judgment.
    In suit by corporate stockholders to recover assets of the company wrongfully disposed of by. a director, judgment must be for and in behalf of all stockholders and in favor of the company, not for plaintiffs individually for their respective interests in the amount of the recovery.
    14. Corporations <&wkey;213 — Stockholders’ Suit — Declaring Forfeiture of Charter1.
    In such suit the trial court improperly declared the company’s charter forfeited, where the state was not a party, and the record showed that the company was still an existing corporation, not showing that plaintiffs as individuals, or that the corporation itself, ratified the illegal acts alleged 'to have been committed 'by the dominating director and the hoard.
    Appeal from District Court, Wichita County ; M. N. Bonner, Judge.
    Action by W. J. Johnson and others against Due Millsaps and others. From the judgment, defendant Millsaps appeals.
    Judgment affirmed as reformed, and rendered.

      Carrigan, Montgomery & Britain, of Wichita Palls, for appellant. Weeks & Weeks, of Wichita Palls, for appellees.
   HALE, J.

This action was brought by W. J. Johnson, D. W. Colley and wife, R. H. Henry, J. H. Endacott, J. R. Baker, and W. M. Waldock against Due Millsaps, C. L. Mur-rie, and the MeGrattan-Millsaps Company, a corporation. Plaintiffs alleged that each of them was a stockholder in the MeGrattan-Millsaps Company, and held such stock in January, 1913; that said corporation had a capital stock of $40,000, divided into shares of $10 each; that defendant Due Millsaps was at all times a director, and that the other directors were Hugh McGrattan, I. E. Rose, and Prank McGrattan and J. H. Endacott; that the said Millsaps assumed to act as manager of said corporation up to about March 1, 1914, and that Endacott was not an active director; that the corporation operated a dry goods store at Weatherford, Tex., up to the latter part of 1914, and that in the fall of 1913 put in a stock of dry goods at Wichita Palls, Tex., and conducted the business there until about March 1, 1914; that early in the year of 1914 P. H. Pennington, C. J. Barnard, and Due Millsaps agreed to organize two mercantile corporations at Wichita Palls, one to be known as the P. B. M. Company, and one as the P. H. Pennington Company; that Pennington and Barnard each owned a stock of goods in Wichita Palls, Tex.; that the Pennington Company was to have a capital stock of $25,000, and the P. B. M. Company of $75,000, and that both were to be operated by Pennington, Barnard, and Millsaps, and that each of them was to furnish, either in cash or merchandise, one-third of the capital of each corporation; that Barnard and Pennington each conveyed to said corporation merchandise of value equal to the stock subscribed for by them respectively, and that Due Millsaps took from Me-Grattan-Millsaps Company’s stock at Wichita Palls goods worth $36,500, and placed $25,-000 worth of the same in the P. B. M. Company, and $13,500 into the P. H. Pennington Company, and that in doing so he acted without authority of ihe corporation, and converted the goods to his own use, and that neither said corporation nor its stockholders had ever received anything for said goods. Plaintiffs further alleged that, if Millsaps was authorized to transfer the goods, that he had convei’ted whatever shares of stock or money he received as the consideration for said merchandise and fixtures to his own use, and that the stock was worth 100 cents on the dollar, and that thereby the MeGrattan-Millsaps Company and its stockholders were damaged $36,500; and, further, that if the MeGrattan-Millsaps Company received anything, that the consideration was wholly inadequate, and was not agreed to and accepted by the corporation and that he had no right to purchase either the goods or stock from said corporation; that the said Millsaps still owned a part of the stock in the P. B. M. Company and in .the Pennington Company, but claimed the same as his own, and had repudiated his trust relationship, and that the corporation and stockholders were entitled to recover the. value of the goods and fixtures or the value of the stock. The petition then proceeds as follows:

“Plaintiffs further allege that they are informed that the said defendant Due Millsaps, in consideration of the said merchandise and fixtures taken by him in the first instance, as aforesaid and the stock obtained for same in the second instance, has either paid or arranged to pay a portion of the debts of the McGrattan-Miil-saps Company, and being in the sum of about $20,000, and that, as part of said consideration, the said defendant Due Millsaps canceled $5,000 of his own stock in the MeGrattan-Millsaps Company; but plaintiffs allege, if this be true, that this consideration is wholly inadequate, and that the said property so converted was worth, as aforesaid, the sum of at least $36,500, and in the cancellation by the said Due Millsaps of $5,000 of his stock in the said McGrattan-Mill-saps Company was not any remuneration of any value of any kind to the MeGrattan-Millsaps Company, and was of no benefit to said company, and was not agreed to by any of the stockholders or directors in said company; so that, if the said defendant Due Millsaps has paid the sum of $20,000, which these plaintiffs deny, then the said defendant Due Millsaps is still indebted to the said MeGrattan-Millsaps Company and the stockholders thereof in the sum of $3.6,500; that as soon as said merchandise and fixtures were appropriated by the said defendant Due Millsaps, as aforesaid, which act plaintiffs alleged took place about March. 1, 1914, the said defendant Due Millsaps abandoned the said MeGrattan-Millsaps Company, and devoted all of his time and attention to the said P. B. M. Company and the said P. H. Pennington Company, and thereby went in competition with the said MeGrattan-Millsaps Company, and was in competition with same as long as the said MeGrattan-Millsaps Company survived in Wichita Ealls, Tex., which plaintiffs alleged was some two or three months, and by this act on the part of the defendant Duo Mill-saps the said, MeGrattan-Millsaps Company was forced out of business in Wichita Ealls, and the value of plaintiffs’ stock in said MeGrattan-Millsaps Company, which but for the wrongful acts of the said defendant Due Millsaps was worth par, and was made to depreciate in value until the same was worthless, and that said defendant Due Millsaps thereby wrongfully and maliciously destroyed the said McGrattan-Mill-saps Company’s store in Wichita Ealls, and deprived these plaintiffs of the value of their stock in the said company, and by virtue of these facts the said plaintiffs are entitled to recover of the said defendant Due Millsaps the sum of $5,000 as exemplary damages.
“Plaintiffs further allege that they bring this suit as stockholders in the said MeGrattan-Millsaps Company for the use and benefit of said company, and for themselves as stockholders, and for the other stockholders in the same, and they allege that the board of directors of said corporation, at the time of the institution of this suit, and at all times since the wrongful acts complained of, is and was dominated and controlled by the said Due Millsaps, and that the said Due Millsaps and the majority of the board of directors were in league with each other for the purpose of assisting and enabling the said Due Millsaps to acquire the property of the said Millsaps Company, their plan being for the said Due filillsaps to take the assets; and for the said Due Millsaps to compensate his co-partners after he had made a successful getaway, and that the said Due Millsaps at all such times influenced and controlled the vote of a majority of said directors on this account, and he thus caused them to disregard their true relation and obligations to the stockholders of the said company, and overpersuaded them, and misrepresented to some of them his true intention, so that they were induced to vote at said meetings during said times as directors, by the said Due Millsaps, and the majority of said directors are still aiding and assisting the said Due Millsaps in completing the fraud which he had perpetrated upon plaintiffs herein and other innocent stockholders; that the two directors, Hugh McGrattan and Frank McGrattan, were recompensed for their acts in this connection by being permitted to buy accounts of the said McGrattan-Millsaps Company at Weatherford, Tex., for a sum much less than their reasonable value, and the said I. E. Rose was influenced to so vote by the promise of being paid in full for his stock in said company, which promise was fulfilled by the said Due Millsaps long after said company had become dormant, and after its stock had become worthless; and plaintiffs allege that it will be useless and futile to apply to said board of directors to bring this suit against the said Due Millsaps, because the majority of the said board of directors axe interested in seeing that the said Due Millsaps gets away with the property that he has wrongfully taken as aforesaid.
“Plaintiffs further allege that the said Due Millsaps and the said directors, except the said J. H. Endacott, ai*e in league with each other, as aforesaid, and that they own and control a majority of the stock of said corporation, and it would be useless and futile to apply to the stockholders to bring said suit, and said stockholders are broadly scattered, and it would be very difficult to get them to attend a meeting of the stockholders in said corporation, and it would bo useless to apply to said board of directors or managing officers of said corporation to call a meeting of such stockholders for the purpose of authorizing the bringing of this suit on behalf of said corporation to collect the moneys herein sued for as the said Due Millsaps and the other directors and managing officers of said corporation, except the said J. II. Endacott, are parties to the illegal and fraudulent transaction above set forth, and are indirectly interested, as plaintiffs allege, in the fruits of such illegal transaction; that said directors, except said Endacott, have tried to prevent this suit from being brought, and have tried to induce some of plaintiffs to withdraw from same, and have failed to hold their annual meetings for 1914 and 1915, so that new directors could be elected, and they wanted to remain in control of said company to prevent the company from bringing or prosecuting this suit, and I. É. Rose resigned as director, in January, 1915, and there has not been a quorum of directors available since that time.
“Plaintiffs further allege that the said Mc-Grattan-Millsaps Company has no power and right, under the laws of the state, to bring or maintain this suit, in that the said corporation, has failed and neglected to pay its franchise tax for this year, and has ceased to exercise its corporate powers and privileges, and has ceased to do business of any character since January 16, 1915, and has not been a going concern, but has been dormant in every respect and was practically so six mouths prior to January 16, 1915; and plaintiffs further allege that on or about January 16, 1915, a majority of the directors of said corporation, without the knowledge and consent of the stockholders thereof, and without the knowledge and consent of the plaintiffs, but at the will and direction of the said Due Millsaps, conveyed to the defendant C. L. Mui*-rie, as private trustee, for the benefit of the creditors of the said McGrattan-Millsaps Company, all of the assets remaining and belonging to the said company, of every nature, which plaintiffs allege amounted to $30,000 worth of merchandise, fixtures, live stock, accounts receivable, and money in the bank, and that said board of directors, without the consent of the stockholders in said corporation, and without the knowledge and consent of these plaintiffs, at the will and direction of the said Due Millsaps, agreed that the said private trustee should convey the said property, which conveyance was made to one of the creditors of the said McGrat-tan-Millsaps Company, in order to liquidate the debts then outstanding against the said company, at the basis of fifty cents on the dollar, which debts plaintiffs now allege have been liquidated in full, and that the said McGrattan-Millsaps Company now has no liability of any kind or character, and that this cause of action set up heroin by these stockholders is the only asset which is known to these plaintiffs, and if recovered it is subject to distribution among the stockholders of said corporation as their interest in said corporation may appear; and, for all of the reasons above set forth, the plaintiffs allege that they have a right to bring and maintain this suit in their own names, for their benefit, and for the interest of all the stockholders in the McGrattan-Millsaps Company; but plaintiffs allege that the said defendant C. D. Murrie is made a party defendant herein so that, if the court should determine that these assets when recovered were among those conveyed to said trustee, that then these plaintiffs be 'allowed to prosecute this suit for the benefit of the said trustee, in his capacity stated, and that the recovery herein be for the benefit of the rightful beneficiary or said trustee; and plaintiffs allege that while he was appointed trustee for the benefit of the creditors, that the creditors have all been satisfied, and any property remaining in his hands when these assets are recovered by him is subject to disteibution among all of the stockholders of the Mc-Grattan-Millsaps Company.”

Neither McGrattan-Millsaps Company nor C. L. Murrie filed any answer. The defendant Due Millsaps answered by general and special demurrers, all of which were overruled, by general denial, and by special answer, the material parts of which are as follows:

“For further answer herein this defendant says that in the fall of the year 1913, that the McGrattan-Millsaps Company was in financial difficulties, and was unable at that time to pay its debts, of which at that time it owed a large amount, and that about the 6th day of October, 1913, the directors and practically all of the stockholders of said corporation, including all of the plaintiffs in this case, agreed that its stock of merchandise then situated at Wichita Falls, Tex., should be sold in part to a corporation to be organized and operated at Wichita Falls, Tex., and to be known as the P. B. M. Company, and that the remainder of its stock, including goods and fixtures at Wichita Falls, Tex., might be sold and delivered to a firm or corporation in Wichita Falls known as the P. H. Pennington Company, and that for said goods it should receive stock in the said P. B. M. Company when incorporated to the amount of $25,000, and an interest in the P. H. Pennington Company equal to the goods and merchandise turned over to said company, and further agreed to pledge any and all such stock and interest which it might receive for said goods to secure the creditors of the McGrattan-Millsaps Company in the payment of their debts, and that at said time it was contemplated by said stockholders and agreed that said Due Millsaps, the defendant herein, should represent said corporation in said pronosed transaction, and should hold said stock or interest in trust for said corporation, its stockholders and creditors, and it was known at said tíme to said stockholders and each of them that the said Due Millsaps had made a contract or agreement, subject to the approval of the said McGrattan-Millsaps Company, to carry out the transaction as herein above set out, and that before said corporation was consummated by the delivery of said goods, and at a special meeting of the stockholders of the said McGrattan-Millsaps Company, held about December 8, 1913, the directors of said company directed that goods of said company at "Wichita Palls, to the invoice value of $25,000, should be sold and delivered to the said P. B. M. Company, and that the remainder of said goods, merchandise, and fixtures be sold and delivered to the P. H. Pennington Company; that at said meeting plaintiff J. H. Endacott was present in person, and all the other plaintiffs were present and represented either in person or by proxy, and at said meeting it was fully discussed and agreed and fully understood that said sale of said merchandise and fixtures to the P. B. M. Company and tho P. H. Pennington Company should be made for stock in the P. B. M. Company, and for stock or interest in the P. H. Pennington Company, and that said facts were known to all of the plaintiffs herein, and were also known to all of the directors of said corporation, and that all of said persons were fully informed as to the nature and details of the proposed transaction; that pursuant to said authority and agreement that the goods of the said McGrattan-Mill-saps Company and fixtures of the invoice value of about $25,000 were delivered to the P. B. M. Company, and thereafter, when said company was incorporated, stock was issued therefor to the amount of $25,000, which was held by the defendant Due Millsaps, in accordance with the agreement and understanding made with the directors and stockholders, for the benefit of and to secure the creditors of said Me-Grattan-Millsaps Company, and the said Due Millsaps held said stock as trustee for said company and its creditors; that the P. H. Pennington Company was not incorporated until long after a portion of said stock of goods had been delivered to it, and that the portion of said stock of goods so delivered to the said P. H. Pennington Company was of the cost and value of $9,-628.65, but the actual cash market value both of said goods delivered to the P. B. M. Company and to the P. H. Pennington Company was not more than fifty cents on the dollar; that all of the above facts were fully known to all of the directors and stockholders and to all of the plaintiffs herein at the time said transaction occurred, and all of the officers and directors and all of the stockholders of the said McGrattan-Millsaps Company, including the plaintiffs herein, acquiesced in, ratified, and agreed to the entire transaction, and that all of said directors, officers, and stockholders are here now, by reason of the above-entitled facts, estopped to question tho same or seek to'set the same aside; that after said sales to the P. H. Pennington Company and the P. B. M. Company, above referred to, the P. H. Pennington Company sold part of the goods referred to, together with other stock belonging to said company, and, in order to reduce the amount invested in the P. H. Pennington Company, the P. H. Pennington Company paid back to McGrattan-Millsaps Company, through Due Millsaps, the sum of about $1,100; that, however, in calculating the amount to be paid, the said P. H. Pennington Company made an error, and thereafter called upon defendant Due Millsaps to restore' to P. H. Pennington Company a part of the money so paid, amo-unt-■ing to about $100, and the said Due Millsaps did repay to said P. H. Pennington Company said amount; that of said sum of about $1,000, being the net amount received from said P. H. Pennington Cdmpany, this defendant paid to tho McGrattan-Millsaps Company in cash $800, a.nd applied the remainder of said sum to the payment of himself of certain - interest which he had paid out of his personal funds upon the indebtedness of tho said McGrattan-Millsaps Company for all of the money so received by him from P. H. Pennington Company; that in the early part of the year 1914 the McGrattan-Millsaps Company was indebted to the First National Bank of Wichita Falls, Tex., in the sum of $5,000, and that tho said McGrattan-Mill-saps Company, when the same became due, was unable to pay the same; that said indebtedness was secured by the indorsement of this defendant, and that some time early in the year 1914 the said First National Bank refused to renew said indebtedness upon the note of said McGrat-tan-Millsaps Company, but did agree that if this defendant would give his own note for $5,000, and place as collateral therewith $5,000 stock of the P. B. M. Company, that the said bank would accept the same and extend the time for the payment of said indebtedness, and that this defendant did give his own note for said $5,000 to said bank, and did deposit as collateral therefor, by authority of the board of directors of the McGrattan-Millsaps Company, $5,000 of the stock of the P. B. M. Company, and that this defendant -thereafter paid and settled said note out of his own funds.
“This defendant further alleges that on or about July 1, 1914, the said McGrattan-Mill-saps Company was due this defendant the said sum of $5,000, and that on the 1st day of July, 1914, at a meeting of the director’s of the Mc-Grattan-Millsaps Company, this defendant stated to said directors, and all of them, that he would like to purchase a portion of the stock, then belonging to said McGrattan-Millsaps Company, in the P. B. M. Company, and that the P. H. Pennington Company, himself, and that he believed he could sell a portion of said stock to other parties, and that thus the said McGrat-tan-Millsaps Company would be able to realize on said stock for the purpose of paying its debts; that the said directors then knew and understood that this defendant expected to take a part of said stock himself, and dispose of the remainder for the best price obtainable by him, and that at said meeting on July 1, 1914, the directors of said McGrattan-Millsaps Company did agree to sell to this defendant all of its stock in the P. B. M. Company and the P. H. Pennington Company for the sum of $25,009, it being understood at that time that the $5,000 which had been assumed or paid by this defendant to the First National Bank of Wichita Falls, Tex., should also be taken as a part of the purchase price for said stock and interest; that thereupon an order was made and entered by said board of directors that tho said stock should be sold to Due Millsaps for the sum of $20,000, and the surrender by the said Due Mill-saps of $5,000 of stock then owned by him in the McGrattan-Millsaps Company, and while said order did not in fact show that the $5,000 which had been assumed or paid by the defendant to the First National Bank of Wichita Falls, Tex., was to be taken and considered as a part of the purchase price for said stock, that yet, in truth and in fact, it was so understood and agreed by all of the parties at said time, and at said time said directors further ordered that the said $20,000 which was still to be paid for said stock should be applied upon the debts of tho said McGrattan-Millsaps Company to its creditors; that at the time said order and trade above set out were made there was present and participated all of the directors of said corporation except this defendant and I. E. Rose; 'that this defendant did not vote or participate as a director at said meeting and that said I. E. Rose who was a director and who was not present at said meeting agreed and consented to said transaction in writing and that all of said director’s knew and understood at the time that this defendant was to personally take part of said stock and sell or dispose of the other part as best he was able and that in consideration of said stock he was to release the company from liability to him for the $5,060 paid or secured by him to the First National Bank of Wichita Falls, Tex., and should pay in addition thereto ¡620,009 upon the indebtedness of the said McGrattan-Millsaps Company, and surrender the $5,000 of stock held by him in sai'd McGrattan-Millsaps Company; that, pursuant to said contract and agreement so made by said directors, the said Due Millsaps did take the said stock in said P. B. M. Company and P. H. Pennington Company, and did sell and dispose of a portion thereof and kept the remainder, and did in consideration therefor, in addition to the sum of $5,000, already paid or secured to the First National Bank of Wichita Falls, Tex., pay the full sum of $20,000 upon the indebtedness of the said McGrattan-Millsaps Company; that this defendant paid and secured and caused the McGrattan-Millsaps Company to be released from liability for the following debts then due by said McGrattan-Millsaps Company, to wit: To John V. Farwell & Co., of Chicago, $11,000; to the First National Bank of Weatherford, Tex., $6,000; to Rose Manufacturing Company, $1,500; to Sanger Bros., $1,500; and to release'the said McGrat-tan-Millsaps Company from any liability to him for the $5,000 which he had already paid or secured to the First National Bank of Wichita Falls, Tex., the said defendant did indorse and surrender stock certificates for the $5,000 stock in the McGrattan-Millsaps Company; that said entire transaction was made in the utmost good faith, and that all the facts and circumstances were well known to all of the directors and stockholders of the McGrattan-Millsaps Company, and that in truth and in fact the amount so paid by him, as above alleged, for said stock in the P. B. M. Company, and for said stock and interest in the P. H. Pennington Company, was the full and fair market value of said stock and interest, and that said stock at said time was not worth and could not be sold for par value, but in truth and in fact the price paid by this defendant was the full and fair value of said stock at said time; and this defendant further alleges that the directors of said McGrattan-Millsaps Company were fully informed with reference to all the facts affecting the value of said stock, and that the said directors and officers made said trade with this defendant in good faith, and acting in the utmost fairness and honesty in what they believed was for the best interest of the stockholders in said corporation; that one of the plaintiffs herein, to wit, J. H. Endacott, was at said time a director in said corporation, and personally agreed and consented to said transaction, and that all of the plaintiffs and all of the stockholders of said corporation had full knowledge of the entire transaction, and acquiesced therein and consented and agreed thereto.”

Defendant Due Millsaps further denied all allegations charging that he dominated and controlled the directors and stockholders, and alleged that in January, 1915, the McGrattan-Millsaps Company made an assignment to C. L. Murrie, by which it conveyed all its property, of every character, to C. L. Murrie for the benefit of its creditors, and that if the corporation had any valid claim against the defendants it passed to said assignee.

The case was tried by a jury upon special issues submitted by the court, and upon the return of the verdict judgment was rendered against Due Millsaps in favor of W. J. Johnson for $628; in favor of R. H. Henry for $419; in favor of W. H. Waldock for $314.-25; in favor of D. W. Colley and wife for $209.50; in favor of J. R. Baker for $104.75; and it was further decreed that plaintiff En-dacott take nothing, and that plaintiff take nothing against the McGrattan-Millsaps Company and O. L. Murrie. •

It is contended under the first assignment of error that the court should have sustained defendants’ first special exception to plaintiffs’ fourth amended original petition. This exception was to the effect that since the petition showed that the corporation had. failed to pay its franchise tax and had ceased to exercise its corporate powers and privileges, and because the president and directors or managers of the corporation were not made parties to the suit, the action could not be maintained. The proposition urged is that the suit having been brought by the stockholders upon a cause of action which had accrued to the corporation and for the benefit of all stockholders, and being a cause of action in which all stockholders and creditors had an interest, and that plaintiff having alleged that the corporation had failed to pay its franchise tax, and ceased to be a going concern, that it had made an assignment of all of its assets for. the benefit of the creditors, and no receiver having been appointed, that the president and directors were, under the law, trustees, charged with the power and duty of settling the affairs of the corporation, and of collecting its debts, and were therefore necessary parties. It will be seen that the proposition enlarges the scope of the assignment. The directors, as shown by the pleading,, were Due Millsaps, Hugh McGrattan, I. E. Rose, Frank McGrattan, and J. H. Endacott. J. II. Endacott and Millsaps are the only two directors who were parties to the suit. By the provisions of Vernon’s Sayles’ Civil Statutes, art. 7399, when a corporation fails to pay its franchise tax, and the forfeiture of its right to do business in Texas, because of such failure, has been properly declared and recorded by the Secretary of State, it cannot sue nor can it defend a suit except one to forfeit its charter. It is true that the plaintiffs have alleged that the corporation had not paid its franchise tax, but they did not allege that the Secretary of State had forfeited the company’s right to do business because such tax had not been .paid.

The statute requires the Secretary oi State to enter upon the margin of the record kept in his office for that purpose the words “Rights to do business forfeited” and the date of such entry, before the company’s right to sue or defend is denied. Pitts v. Cypress Shingle Co., 158 S. W. 799; Harvey v. Prov. Ins. Co., 156 S. W. 1127.

It is provided by Vernon’s Sayles’ Civil Statutes, art. 1206, that upon the dissolution of any corporation, where no receiver has been appointed, and the president and directors or managers of the affairs of the corporation shall be trustees for the creditors and stockholders thereof, with full power to settle its affairs, collect outstanding debts, etc.; but tbe rule is established in this state that the failure of a corporation to pay its franchise tax does not ipso facto work a dissolution. Canadian Country Club v. Johnson, 176 S. W. 835. Since plaintiff did not allege that the company had been denied the right to sue, and that it had been dissolved, the court correctly overruled the special exception.

By his second assignment appellant insists that the court erred in overruling his general demurrer to plaintiff’s petition, and urges this proposition:

“Where a corporation is unable to pay its debts and is insolvent, and has, by its board of directors, made an assignment of all of its property, of every character, to a trustee or assignee for the benefit of its creditors, and ceased to do any character of business, and the trustee has sold all of its assets to a creditor, a stockholder has no interest in any asset so assigned by said corporation, and can maintain no suit, either for himself, the corporation, or trustee for the creditors.”

The allegation in the petition with reference to this matter is:

“The majority of the directors of said corporation, without the knowledge and consent of the stockholders thereof, and without the knowledge and consent of these plaintiffs, but at the will and direction of the said Due Millsaps, conveyed to the defendant O. L. Murrie, as private trustee for the benefit of the creditors of the said McGrattan-Millsaps Company, all _ of the assets remaining and belonging to the said company of every nature, which plaintiffs allege amounted to $30,000 worth of merchandise, fixtures, live stock, accounts receivable, and money in the bank, and that said board of directors, without the consent of the stockholders in said corporation, and without the knowledge and consent of these plaintiffs, and at the will and direction of the said Due Millsaps, agreed that the said private trustee should convey the said property, and which conveyance was made to one of the creditors of the said McGrattan-Millsaps Company ■ in order to liquidate the debts then outstanding against said company at the basis of fifty cents on the dollar, which debts plaintiffs now allege to have been liquidated in full, and that the said McGrattan-Millsaps Company now have no liabilities of any kind or character, and that this cause of action set up herein by these stockholders is the only asset which is known to one of these plaintiffs, and any recovery is subject to distribution among the stockholders of said corporation, as their interest in said corporation may appear, and for all of the reasons above set forth plaintiffs allege that they have a right to bring and maintain this suit in their names, for their benefit, and for the interest of all the stockholders in the Mc-Grattan-Millsaps Company.”

Tbe second assignment of error is based on tbe court’s action in overruling the general demurrer to the petition. Under this assignment appellant urges the proposition that where a corporation is unable to pay its debts and is insolvent, and has, by its board of directors, made an assignment of all its property to an assignee for the benefit of its creditors, and ceased to do any character of business, and the trustee has sold all of its assets to a creditor, a stockholder has no interest in any asset so assigned by the corporation, and can maintain no suit either for himself, the corporation, .or- as trustee for the creditors. In considering this and the preceding assignment, in the original opinion, we proceeded upon the idea, advanced in the briefs of both parties, that the allegations of plaintiff’s petition showed a statutory assignment. A review of the petition has convinced us that the attorneys for appellant and appellee are mistaken as to the effect of the allegation. It will be seen that the pleader mentions the character of property which was conveyed to Murrie as a “private trustee,” and that the conveyance was made for the purpose of paying the debts of the corporation for 50 cents on the dollar, and that all indebtedness has been satisfied.

We think this is an allegation that the company has made a chattel mortgage for the benefit of its creditors, and is almost tantamount to a statement that the company has effected a composition with its creditors.

It is an elementary rule of pleading that specific allegations will control general statements such as that “all of the assets” of the company passed to Murrie. Indulging every reasonable intendment in favor of the pleading, it cannot be construed to mean that a statutory assignment was made, since it is shown that all of the company’s property did not pass to the assignee. It is specifically alleged that this chose in action did not pass. The allegation that the property was conveyed to a “private trustee,” “at the will and direction” of appellant, precludes the idea that the pleader had in mind a general assignment.

If there was no general assignment alleged, but the effect of the allegation is that a chattel mortgage or a conveyance in trust was made, of course no title to this cause of action was vested in Murrie.

He took only the particular property conveyed, and the trust terminated when such property was sold and the debts all satisfied. Murrie was therefore not a necessary party to the suit, under the allegations, since the petition further discloses that the corporation was not dissolved; that Murrie had no right, under the assignment, to this cause of action; and further shows the futility of calling on the officers and directors to sue.

We think the petition unquestionably shows that the right to maintain this action and prosecute it to a finality is in appellees. As said in Pomeroy’s Equity Jurisprudence (3d Ed.) vol. 3, § 1095:

“If the facts as alleged show that the defendants charged with the wrongdoing, or some of them, constitute a majority of the directors or managing body at the time of commencing the suit, or that the directors, or a majority thereof, are still under the control of the wrongdoing defendants, so that a' refusal of the managing body, if requested, to bring a suit in tlie name of the corporation may be inferred with reasonable certainty, then an action by a stockholder may be maintained without alleging or proving any notice, request, demand, or express refusal.”

The language of the petition clearly brings this case within the rule. Much is said by appellant in discussing tlie effect of the supposed general assignment and the sale by the trustee to one of the creditors, with regard to the right of the creditor who acquired the assets from Murrie to maintain this suit. In this connection the following language from the above-quoted section of Pomeroy is pertinent:

“Although the corporation holds all the title, legal or equitable, to the corporate property, and is the immediate cestui que trust under the directors with respect to such property, and is theoretically the only proper party to sue for wrongful dealings with that property, yet courts of equity recognize the truth that the stockholders are ultimately the only beneficiaries; that their rights are really, though indirectly, protected by remedies given to the corporation; and that the final object of suits by the corporation is to maintain the interests of the stockholders. While, in general, actions to obtain relief against wrongful dealings with the coi’porate property by director’s and officers must be brought by and in the nane of the corporation, yet if, in any such case, the corporation should refuse to bring a suit, the courts have seen that the stockholder would be without any immediate and certain remedy, unless a modification of the general rule were admitted. To that end the following modification of the gen-ei-al rule, stated in the last preceding paragraph, has been established as finnly and surely as the rule itself: 'Wherever a cause of action exists primarily in behalf of the corporation against directors, officers, and others, for wrongful dealing with corporate property or wrongful exercise of corporate franchises, so that the l’emedy should 'regularly be obtained through a suit by and in the name of the corporation, and the corporation, either actually or virtually, refuses to institute or prosecute such a suit, then, _ in order to prevent a failure of justice, an action may be brought axxd maintained by a stockholder or stockholders, either individually or suing on behalf of themselves and all others similarly situated, against the wrongdoing directors, officers, and other persons; but it is absolutely indispensable that the corporation itself should be joined as a party — usually as a codefendant. The rationale of this rule should not be misapprehended. The stockholder does not bring such a suit because his rights have been directly violated, or because the cause of action is his, or because he is entitled to the release sought. He is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually, or as the representative of the class, may commence the suit, and may prosecute it to judgment, but in every other respect the action is the ordinary ono brought by the corporation. It is maintained directly for the benefit of the corporation, and the final relief, when obtained, belongs to the corporation, and not to the stockholder plaintiff. The corporation is therefore an indispensable, necessary party, not simply on the general principles of equity pleading in order that it may be bound by the decree, but in' order that the release, when granted, may be awarded to it as a party to the record by the decree. This view completely answers the objections which are sometimes raised in suits of this class that the .plaintiff has no interest in the subject-matter of the controversy nor in the relief. In fact, the'plaintiff has no such dii’ect interest; the defendant corporation alone has any direct interest; the plaintiff is permitted, notwithstanding his want of interest, "to maintain the action solely to prevent and otherwise plead the.failure of justice.”

In disposing of the first two assignments ■we have said this much with reference to the pleadings.

The third assignment complains of the court’s refusal to direct a verdict for appellant, and the first proposition advanced is that the undisputed evidence in this case, and the pleadings by both plaintiffs and defendants, showed that after the cause of action asserted accrued. in favor of the corporation, that the corporation became insolvent, ceased to do business, and finally abandoned its business, and the directors and the corporation made a general assignment of all its property for the benefit of its creditors, and that all of said property was sold by the assignee for tlie payment of the debts, and therefore it conclusively appears that neither the plaintiffs, as stockholders, nor the corporation, had any cause of action against appellant. We do not agree with appellant in his statement that the evidence shows a' general assignment. The instrument executed by Hugh, McGrattan as president, and Ene Millsaps as vice president, was intended by the scrivener to be a general assignment under the statutes, and is formal and in compliance with the statutory requirements in every particular. It recites:

“Now, therefore, in consideration of the premises, and of the sum of one dollar to him in hand paid by the said O. L. Murrie, doth by these presents bargain, convey, and set over unto the said O. L. Murrie all of its real and personal estate other than that which is by law exempt from execution.”

No inventory of the assets appears in the record, but the above recital shows that real estate as well as personalty was conveyed to tlie assignee.

While we have not been able to find in the statement of facts any evidence of what real estate the company owned, we must presume that the assignor would not have undertaken to convey real estate unless the corporation really owned it. As was said by Stayton, Chief Justice, in Shropshire v. Behrens, 77 Tex. 275, 13 S. W. 1043:

“The instrument purports to convey all property, both real and personal, of the corporation, while the inventory attached to it shows only personal property, but does not exclude the existence of realty also. * * * From the face of the instrument, it must be held that the intent was to assign both l-eal and personal property, and that the instrument was not executed under the corporate seal. While the use of seals has been rendered unnecessary to the validity of contracts between individuals, the statutes of this state still require that corporations shall evidence their conti*acts by use of their corporate seals. They ax-e excepted from the operation of the law which renders the use of seals unnecessary in contracts between individuals. * * * We think it is clear that the instrument in question, because not executed under the corporate seal, is insufficient to convey to the assignee any real estate owned by the corporation which to give validity to the assignment was necessary. If, in fact, the corporation owned no real property, this fact should have been distinctly alleged, and such fact cannot be implied either from the averments of the petition or language of the instrument.”

The same rule is announced in Allcott v. Spencer Optical Mnfg. Co., 31 S. W. 833.

While under these authorities the attempted assignment is void as a conveyance under the statute, being a common-law mortgage, it is not void as such because of the failure of the corporation to authenticate it by the corporate seal. The practical construction placed upon it by all the parties sustains our view. Fowler v. Bell et al., 35 S. W. 822. It is provided by Revised Statutes, art. 1205, how a corporation may be dissolved. In view of this statute, and in the light of the discussion by the Supreme Court, in the case of Lyons-Thomas Hardware Co. v. Perry Stove Mnfg. Co., 86 Tex. 143, 24 S. W. 19, 20, 22 L. R. A. 802, it cannot be contended in this case that a dissolution of the corporation is either set up in the pleadings or established by the evidence.

The company is therefore not only a proper, but a necessary, party to the action; and since Murrie is not an assignee under the statute, as seems to have been the idea of both appellant’s and .appellees’ attorneys, he should have been dismissed from the action. It is also clear that, under the allegations, appellees have the right to maintain this suit and prosecute it to final judgment.

The substance of the second proposition under the third assignment, and of the fourth, fifth, and seventh assignments, is that the undisputed evidence failed to show that Hue Millsaps improperly dominated and controlled a majority of the directors of the company, and that this issue should not have been submitted to the jury; and, further, that the court erred in failing to instruct the jury what constituted “improper domination and control.”

The last objection attacks the charge because of an omission, and, since appellant failed to ask a special charge supplying the defect, he cannot complain, even if we admit that a charge defining that term was necessary.

We said in our original opinion, and still think, that the evidence amply supports this finding of the jury. The record shows that Millsaps owned 111 shares, Frank Mc-Grattan and Hugh McGrattan 84 shares, I. E. Rose 10 shares, and Endacott 30 shares, of the 400 shares of stock in the MeGrattan-Millsaps Company. The five shareholders named were the officers and directors of the company. I. E. Rose lived in Dallas, and had invested his money in the 10 shares owned by him at the request of Millsaps, and upon a guaranty by Millsaps that he would not lose anything on the investment. It appears that, after the assets of the company were sold, Millsaps refunded to Rose the amount paid for his stock. Rose never attended a directors’ meeting, and he was simply the alter ego of Millsaps in the corporation. In July, 1914, Millsaps, who lived in Wichita Falls, went to Weatherford, where the other branch of the company’s business was being conducted by Hugh McGrattan as president, and Endacott as secretary, of the corporation, and without any legal notice, at the request of Millsaps, McGrattan called and held a meeting of the board of directors for the purpose of authorizing Millsaps to dispose of the company’s property. It appears that Frank McGrattan, although a director, and present in the town of Weatherford, did not attend the meeting of the board, but verbally authorized Millsaps and his brother Hugh McGrattan to represent him. After Hugh McGrattan had been served with citation in this case, he made no effort whatever to protect the company’s interest, and stated while on the witness stand that he would not voluntarily come into court and ask that the benefits .of the litigation, if any, be paid to the company. At the July meeting of the directors, composed of only Millsaps, Hugh McGrattan, and Endacott, although admitting that it was a called meeting, and that the stockholders at large were ignorant of its purpose, it was agreed that Millsaps should purchase 835,000 worth of the company’s property at a price which the jury found to be below its real value, and the record shows that these goods were situated in Wichita Falls, and fails to show that Hugh Mc-Grattan and Endacott, who together with McGrattan authorized the- purchase, knew anything of the value of the Wichita stock. It is further shown that McGrattan purchased the company’s accounts, amounting to over 86,000 or 87.000, for 81,150. It further appears that Endacott, the secretary of the company, and an employé in the store at Weatherford, authorized the institution of this suit, and afterwards gave Millsaps a written statement to the effect that he had not authorized any one to file the suit in his name. After the July meeting it further appears that Frank McGrattan and I. E. Rose, who had no actual knowledge of what was done at that time, attempted to ratify the sale to Millsaps and the proceedings of the meeting. This, together with other testimony to the same purpose, was, we think, sufficient to sustain the finding of the jury.

The answer of the jury to special issue No. 4, in regard to the reasonable cash market value of all stock in the P'. B. M. Company and the P. H. Pennington Company, which had been given by said two companies in consideration of the merchandise received by them from the McGrattan-Millsaps Company, was 835,629.65, is also amply supported by the evidence. In fact, the evidence of appellant, and the documentary evidence, in the way of affidavits, filed with the Secretary of State, is overwhelming in supporting this finding.

We sustain the appellees’ first cross-assignment, to the effect that the court erred in rendering judgment for the plaintiffs individually for their respective interests in the amount of the recovery. The judgment must necessarily be for and in behalf of all stockholders and in favor of the company.

The court also erred in declaring the charter oí the company forfeited. The state of Texas was not a party to the suit, and the record shows that the company is still a legally existing corporation. The record is insufficient to show that the appellees, as individuals, or that the corporation itself, has ratified the illegal acts alleged to have been committed by Millsaps and the board of directors.

■Our original opinion, which was based upon facts upon which the parties agreed in their briefs, and which we have heretofore found do not exist, is withdrawn, and the judgment heretofore rendered is set aside, and it is decreed that the McGrattan-Mill-saps Company, and the appellees as stockholders of said company, and for its use and benefit, do have and recover of Due Millsaps the sum of $9,829.65, and in so far as the judgment of the court below dissolves the corporation it is reversed. Since neither the assignee nor the parties to whom he sold the assets of the company are parties to this suit, we could not adjudge their rights if we thought they were entitled to participate in the fund. We do not undertake to dispose of, or in any way apportion, the amount recovered. The record shows that all indebtedness against the company has been satisfied, and that it has no creditors, and the apportionment of the fund recovered is a matter to be determined by the stockholders of the company. As here, reformed and rendered, the judgment is affirmed.
      @^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes