text:
    FARMERS’ & MERCHANTS’ GIN CO. v. SIMMONS.
    (No. 8097.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    May 15, 1915.
    Rehearing Denied June 19, 1915.)
    1. Appeal and Error <§==>1001 — Review — Questions op Fact.
    The weight of the testimony and the credibility of the witnesses is exclusively for the jury, and the appellate court will not set aside their findings where the testimony is reasonably sufficient to support the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. @=H0Ol.]
    2. Appeal and Error <@=999 — Verdict — Conclusiveness.
    On the question of the sufficiency of the evidence to support the verdict, the appellate court must reject all evidence favorable to appellant, and consider only the facts tending to sustain the verdict, and if the verdict has been arrived at in an honest and impartial effort to reach the truth, the court cannot set it aside.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§■ 3912-3921, 3923, 3924; Dec. Dig. @=>999.]
    3. Bailment @=31 — Action fob Excessive Delivery by Bailee — Burden op Proop.
    In an action by a gin company to recover the value of cotton seed and lint cotton delivered to defendant in excess of what he was entitled to under his contract, and an excessive credit allowed him in settlement, the plaintiff had the burden of establishing the excessive deliveries and the excessive credit.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. @=>31.]
    4. Bailment @=>31 — Action por Excessive Delivery by Bailee — Suppiciency op Evidence.
    In such action, evidence held to support a verdict for defendant.
    [Ed. Note. — For other cases, see Bailment, Cent. Dig. §§ 124-131; Dec. Dig. @=>31.]
    Appeal from District Court, Denton County;- C. F. Spencer, Judge.
    Suit by the Farmers’ & Merchants’ Gin Company against J. T. Simmons. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Garnett & Garnett, of Gainesville, and George M. Hopkins, of Denton, for appellant. Sullivan & Hill, Owsley & Owsley, and Robert H. Hopkins, all of Denton, for appellee.

       Writ of error pending in Supreme Court.

   CONNER, C. J.

During the cotton season of 1910-1911, commencing about September I, 1910, and ending about January, 1911, the appellant company was the owner of a gin at Lewisville in Denton county, and was engaged in ginning its own cotton, as well as cotton for its customers. Appellee during the same season was engaged in buying seed cotton on his own account at Lewisville, and the parties named entered into a contract, by which appellant agreed to gin for appellee all seed cotton delivered to it by him, and to deliver to him 65 pounds of cotton seed out of each 100 pounds of seed cotton so delivered at the gin, appellee agreeing to pay appellant $2.50 for each bale of lint cotton ginned for him during the season. This suit was instituted by the appellant gin company to recover of appellee the value of 101,984 pounds of cotton seed at the rate of $26 per ton, alleged to have been delivered to appellee in excess of the cotton seed he was entitled to receive under his said contract, and also to recover $1,686.20, the value of 11,833 pounds of lint cotton, the property of the appellant company, and alleged to have been wrongfully taken and converted by appellee, and also to recover of appellee $1,205.95 as the alleged balance due appellant for the ginning of 1,502 bales of cotton at the contract rate, and which it was alleged had never been paid except by a wrongful credit that had been entered upon the books of the appellant company for 96,626 pounds of cotton seed, which appellant had already delivered to the defendant. It was charged that the defendant had been enabled to receive such lint cotton and such excess cotton seed and such wrongful credit by the aid and connivance of N. S. Reedy, appellant's manager, or else by mistake. The defendant admitted the contract as alleged, but denied that he had received the lint cotton as charged, and denied that he had received more cotton seed than he was entitled to under the contract, and denied the conspiracy charged with Reedy. The defendant further specially pleaded that on the 21st day of March, 1911, a settlement had been made of all accounts existing between the parties. The case was submitted to a jury upon special issues, and the jury found that the defendant had delivered to the plaintiff’s gin for ginning during the season of 1910-1911, 2,262,824 pounds of seed cotton; that the defendant received from the gin during the same season 1,374,860 pounds of cotton seed; that he got no more cotton seed from the gin than he was entitled to under the contract, and had not received the lint cotton for the value of which plaintiff sued to recover. The proof shows that a settlement between the parties was had as alleged by the defendant, and that this settlement was made by the weights of the gin company as to lint cotton received and as to cotton seed delivered to the defendant. The proof further shows that all cotton seed received hy the defendant at Lewisville was by him shipped to oil companies at Dallas, Tex., and that the weights of the cotton seed as rendered by the Dallas concerns and credited to the defendant aggregated a greater number of pounds than the books of the gin company at Lewisville had charged against him, and the jury, in answer to an interrogatory as to which weights were correct, answered that the Lewisville weights were. The proof further shows that Cunningham Bros, also operated a gin at Lewisville, during the season of 1910-1911, at which the defendant also delivered cotton under a contract by which he was to receive 65 pounds of seed for each 100 pounds of seed cotton delivered, and one of the principal contentions in the case was whether two certain cars of cotton seed (Nos. 10,136 and 12,066) containing in the aggregate 89,630 pounds came from the Cunningham gin or from the plaintiff gin, and the jury, in answer to a special interrogatory, declared that these cars came from the Cunningham Bros.’ gin. Upon the return of the findings of the jury, as above indicated, the court rendered a judgment in the defendant’s favor, and the plaintiff gin company appeals.

It was substantially admitted on the submission that the verdict, if supported by the evidence, sustains the judgment rendered, and the only assignments of error presented to us are assignments which question the sufficiency of the evidence to sustain the several findings of the jury. It is very earnestly insisted that a number of the jury’s special findings are in opposition to the undisputed evidence, or at least that the evidence so greatly preponderates against the findings that they should be seit aside. Under our law, the weight of the testimony and the credibility of the witnesses is committed exclusively to the jury in cases of jury trials, and the uniform practice of our appellate courts is to refuse to set aside the jury’s findings where the testimony with reasonable sufficiency supports the verdict. Moore v. Rogers, 84 Tex. 1, 19 S. W. 283.

Our Supreme Court, in passing upon the question of the sufficiency of the evidence to support the verdict adopts the following rule:

“We must reject all evidence favorable to the plaintiffs in error, and consider only the facts and circumstances which tend to sustain the verdict, and if the jury, in an honest and impartial effort to arrive at the truth, might have reached the conclusion embodied in this verdict, this court cannot set it aside.” Cartwright v. Canode (Sup.) 171 S. W. 696.

With these principles as guides, we have, as carefully as we could, examined the evidence in this case, and feel unable to say that the jury’s verdict is so manifestly unsupported by the evidence as to require a reversal of the judgment on our part, particularly in view of the action of the trial court in refusing to set such verdict aside when called upon to do so by appellant’s motion for a new trial herein. The most important controversy, as is perhaps apparent from what we have already said, is about the question of whether the 89,630 pounds of cotton seed, which the evidence without dispute shows that appellee received in cars Nos. 10,136 and 12,066, came from the appellant gin or from the gin of Cunningham Bros., for in the settlement between the parties to this controversy in March, 1911, these two cars of cotton seed vrere not charged to appellee on the gin books of the appellant company, as they should have been if in fact the cotton seed in these cars was received from appellant. The jury found that cotton seed at the time was worth $26 per ton, and if appellant’s contention is to be sustained, it should have had a credit in the March settlement of something over $1,150 that was not allowed it. The evidence relied upon by appellant to sustain its contention that the jury were wrong in this finding consists of evidence showing the amount of seed cotton that appellee placed in the Cunningham gin during the season of 1910-1911, and the amount of cotton seed to which he was entitled to receive under his contract with Cunningham Bros., with certain evidence which shows that the books of Cunningham Bros.’ gin give no account of the two car-loads of cotton seed in question. If to the cotton seed charged against appellee by Cunningham Bros.’ gin, there be added the cotton seed in the two ears mentioned, it will appear that appellee received in all from the Cunningham gin about 100 pounds of cotton seed to every 100 pounds of lint cotton that he placed in that gin, aggregating in all more than he was entitled to by substantially the number of pounds contained in the two cars. Appel-lee also testified that he bought no cotton seed of Cunningham Bros., nor did they give him any, and the record fails to show that Cunningham Bros, have ever demanded payment for these seeds. But appellee testified that while he had nothing to do with the loading of the cars, he could tell by the weights whether a given car came from the plaintiff gin or the Cunningham gin; that the method of shipment was for the gins to load the cars and deliver to him the bills of lading, and he testified specifically that the cars mentioned came from the Cunningham gin. In connection with this testimony the appellee exhibited a book kept by him, purporting to contain the entries of shipments of cotton seed made, which manifests the shipment of these two cars with the character “CX” indorsed opposite the entries, which the appellee testified meant that the same came from the Cunningham gin. X. S. Reedy,. appellant’s manager at the time, also testified that he endeavored to keep the books of the appellant company correctly, and that these books showed no entries for the cars in question. As probably accounting for the failure of the books of Cunningham Bros, to show the delivery of the two cars, appellee also offered evidence tending to show that several leaves had been torn out of the hooks at about the place where the cars in question would have appeared, had the entries in fact ever been made. Both appellee and the manager Reedy also testified to the effect that Reedy had no interest in the transactions, and that there was no collusion between them. From this evidence as a whole we feel ourselves unable to say that the verdict of the jury, in answer to the special finding that the ears of cotton seed in controversy came from the Cunningham gin, is manifestly wrong. The mere fact that appellee received from the Cunningham gin more cotton seed than he was entitled to receive is not conclusive, nor it is conclusive that Cunningham Bros, have not charged appellee for these cars, or demanded payment therefor. The burden was upon the plaintiff (now appellant) to establish by a preponderance of the evidence that the seed in these two cars had been delivered to the defendant by it, and a failure to so prove rendered the question of how appellee otherwise got the seed wholly immaterial.

In order to show that the jury improperly found that appellee got no more lint cotton from appellant’s gin than he was entitled to receive under the contract, appellant offered H. L. Montgomery, John Smith, and J. N. Gallahon, who severally testified, to the effect, that they were employed by appellant’s gin during the season in question, and that on several occasions they had noticed the cotton “chute,” through which lint cotton was deposited in the several bins, turn from appellant’s bin into the bins of appel-lee, thus depositing cotton of right belonging to appellant upon and with that owned by appellee. The witnesses Montgomery and Smith both testified that on these occasions they had called the' attention of Mr. Reedy, the manager, to the fact that the gin cotton was being put with Simmons’ cotton. Appellant further showed that appellee’s cotton averaged 32.03 pounds of lint cotton to the 100 pounds of seed cotton, and that the gin com-xsany’s cotton throughout the season averaged but 30.63 pounds of lint to the 100 pounds of seed cotton, and that the general average of all the cotton ginned during the season was but 31.509 pounds per 100 pounds, thus showing, as computed, that appellee received some 11,833 pounds of lint cotton more than the general average, which at the time was worth 14% cents per pound, amounting in all to $1,6S6.20, for which appellee should have been charged in the March settlement. Appellee, however, in turn offered the witness Reedy, who specifically denied that Montgomery or Smith had called his attention to the cotton chute depositing cotton belonging to the plaintiff with that belonging to the defendant. He further testified, as hereinbefore more briefly stated that:

“I had no interest in the world in J. Simmons’ business in any way. I never got anything out of his (John Simmons’) business. I never consulted nor conferred with him about his business. I had nothing to do with his business in any way. * * * I never mixed anybody’s cotton with another’s. We had the cotton piled up in those stalls just as high as we can pile it. When it was piled up that way I used all the precaution I could to prevent Simmons and Wileys and other cotton from being mixed. I never knew of cotton getting mixed there. I heard this man Montgomery testify. Montgomery never came and told me that Wiley’s cotton was being loaded into Simmons’ bin. He never told me that at any time. Yes; this man ‘Chessy’ Smith worked there. The reason he quit — I fired him for drunkenness. Smith never called my attention to the' spouts splitting the cotton between Wiley’s and Simmons’ stalls. I never, at any time or place, had any agreement with Simmons to help him in any way, or to do anything to help him in reference to Wiley.”

Appellee also testified:

“Scott Reedy and I never talked or planned anything for my benefit or for his benefit against the interest of that gin. We never planned for his or my benefit against the gin in any way.”

The witnesses C. M. Livingston, G. W. Clark, and Toll Jasper all testified to a more or less extended experience in farming and raising cotton, and that there was a difference in the yield of cotton as to the percentage of lint cotton to be obtained from 100 pounds of seed cotton. The witness Livingston testified that during the 8 years of his experience he thought his average of lint cotton would be about 33% per cent, per 100 pounds. He also stated that he had sold his cotton to Mr. Simmons in 1910. George Clark testified to the same general effect, and that he made anywhere from 30 to 40 pounds of lint cotton to the 100 pounds of seed cotton, and that he also sold his cotton to Mr. Simmons in 1910. Toll Jasper testified to some 17 or 18 years’ experience, and that there was a difference in the amount of lint that will turn out of cotton to 100 pounds. He attributed the difference to the kind of cotton, the grade of the- land, the season, and the amount of rain; that he could tell cotton in the seed; he could tell whether one load is better than another; that any other experienced man could do the same thing; that his observation was that cotton would run from 27 pounds up to 38, occasionally 40, pounds of lint cotton to the 100 pounds of seed cotton. This witness also testified that he had run a gin for some 18 years, and that the general average, “take it through the season, was about 32 pounds.” He further testified:

“As a cotton buyer, when the general average is 32, I think I can go on the square and pick my load and make it run 32%.”

From this testimony as a whole we cannot say that the verdict of the jury was manifestly wrong. Possibly the cotton purchased by the appellant company was of the same kind and grade as that purchased by the appellee, but there is no specific evidence that this was true. The jury possibly drew the inference that appellee was the better buyer, or had exercised greater care in buying, and that his average turnout was not so greatly abnormal as to show that appellee must have received any substantial amount of appellant’s cotton, particularly in view of Reedy’s testimony and also of appellee’s that Reedy had no interest whatever in aiding the appellee, and that he exercised his best efforts to keep the cotton from being mixed. To say the least of it, it seems to us that, under the circumstances stated, it would be quite difficult to determine with any degree of accuracy any precise quantity of lint cotton, if any, that appellee received of appellant’s cotton, to which he was not entitled. The burden of doing this was, of course, upon appellant. The assignment raising this question must accordingly be overruled.

But little more need be said further than that in the settlement hereinbefore referred to, which was made between appellee and Reedy in behalf of appellant, it was shown by the books of the appellant company that appellee’s total indebtedness on the ginning account amounted to $1,344.45. From this was deducted several payments made by him and a further credit for 96,626 pounds of cotton seed at $26 per ton, which the books of the appellant company showed appellee to be entitled to, but which he had not received, leaving a balance of $138.50, for which ap-pellee then gave his check. Appellant, accordingly, insists that it thus appears that appellee was given credit for several thousand pounds of cotton seed more than he was entitled to, even excluding the cotton seed in cars 10,136 and 12,066. The discrepancy, however, is doubtless occasioned by the difference between the weights of the appellant gin company and those of the Dallas concerns to which appellee shipped his cotton seed. Both appellee and Reedy testified to the effect that Reedy was to account for the cotton seed received by him by the gin company’s weights, and there is no contention, as we understand the record, that the credit of 96,026 pounds of cotton seed was in excess of the credit to which appellee .was entitled by the weights of the gin company. Appellant’s contention is seemingly predicated upon the weights of the oil companies in Dallas, hereinbefore referred to, which the witness at that end of the shipments testified had been correctly made. The jury, however, have found that the gin company’s weights were correct, and we do not feel able to say that the jury’s finding in this respect is unsupported by the evidence. The evidence on the subject was from the witnesses Reedy and Holley, both of whom it appears weighed cotton as it came in and cotton seed as it went out, Holley being employed in the special capacity of weigher. Holley testified that it was his duty to weigh the cotton as received and the seed as it went out; that he had nothing else to do. As he weighed, he made entries upon the books. He testified: “I weighed and made the entries correctly.” Mr. Reedy testified that it was the duty of Mr. Holley to weigh the cotton as it was received, and to make the book entries. He further testified:

“You will notice in the book that there will be an occasional load entered in my handwriting of cotton that came in there. That would be sometimes that I would be in the office, and he had me to weigh a load. I just weighed the load and made the entry on the book. I weighed and made the entry correctly on the book.”

It thus appears, we think, that the evidence relating to the accuracy of the differing weights is merely conflicting, which committed the determination of that particular controversy to the jury.

On the whole, we conclude that the verdict of the jury must be sustained, and the judgment affirmed.
      @=>Eor other oases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    HAWKINS v. COOK.
    (No. 8225.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 19, 1915.)
    1. Exchange of Property &wkey;>5 — Contracts —Rescission.
    Where defendant, who traded real property for machinery, discharged a lien upon the realty, plaintiff is not thereafter entitled to rescind.
    [Ed. Note. — For other cases, see Exchange of Property, Cent. Dig. §§ 5, 6, 8-10; Dec. Dig. <®=35J
    2. Sequestration <&wkey;21 — Actions — Damages.
    Exemplary damages for wrongfully suing out a writ of sequestration cannot be awarded where there was no finding of actual damages.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 50-54; Dec. Dig. &wkey;21.]
    3. Appeal and Error ¡&wkey;747 — Assigning of Error — Necessity.
    Where defendant did not assign cross-errors upon plaintiff’s appeal, he waived errors prejudicial to him.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053 — 3056; Dec. Dig. &wkey;747.]
    Appeal from District Court, Tarrant County; Marion H. Brown, Judge.
    Action by B. J. Hawkins against D. L. Cook, who counterclaimed. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Lattimore, Cummings, Doyle & Bouldin, of Ft. Worth, for appellant. Stanley Boykin, of Ft Worth, for appellee.
   DUNKLIN, J.

L. J. Hawkins and D. L. Cook consummated a trade, which consisted of an exchange of properties; Hawkins conveying to Cook a lot of farming implements, which were then in storage in the city of Ft. Worth, and Cook conveying to Hawkins a house and lot situated in the town of Quin-lan. Hawkins instituted this suit for a rescission of the trade, hasing his claim therefor upon allegations in effect that in order to induce him to make such exchange Cook represented that the house and lot were free from incumbrance, when as a matter of fact the same were incumbered by a mortgage; that Hawkins relied upon that statement, and was induced thereby to make the exchange. At the time of the institution of the suit Hawkins sued out a writ of sequestration, which was levied upon the greater part of the farming implements, which were still in storage in Ft. Worth.

Cook denied the allegations of misrepresentation, admitting an incumbrance upon the house and lot at the time of the exchange, but alleging that plaintiff was informed thereof ; that since that time the said lien had been fully paid off and discharged by the defendant, a release of which lien was tendered in his pleadings. Cook further pleaded a counterclaim against Hawkins, basing the same upon an allegation that he was induced to make the exchange by representations on the part of Hawkins that the farming implements which Hawkins conveyed to Cook consisted of full and complete sets of implements and machinery, which representations Cook thereafter discovered to be untrue. He further alleged the value of the missing implements, and prayed for judgment therefor. He further alleged that the writ of sequestration which had been sued out and levied upon the implements was sued out without probable cause, and that in suing out the same plaintiff acted maliciously and wantonly, and he prayed for damages, both actual and exemplary, for the issuance and levy of that writ.

A trial of the case resulted in a judgment denying Hawkins the rescission of the contract, and awarding to Cook upon his counterclaim a recovery against Hawkins for the sum of $39.45, as the value of the missing implements set out in Cook’s counterclaim, and also awarding Cook the sum of $100 additional as exemplary damages for wrongfully suing out and levying the writ of sequestration. From that judgment, Hawkins has appealed.

By different assignments of error appellant insists that the verdict of the jury upon which the judgment was based was too vague and uncertain to support the judgment. While the verdict is exceedingly unusual in its form, we have reached the conclusion that, when it is interpreted in the light of the court’s charge, it imports findings in accord with the judgment rendered. In addition to those findings, the jury further found in favor of Cook for two disc plows missing from the implements included in the trade, but did not find the value of such missing implements, and also in favor of Cook for the implements sequestered. These additional findings were ignored by the court in entering the judgment.

The proof showed beyond controversy that the incumbrance existing upon the house and lot was duly cleared by Cook and a written release of that lien was tendered into court. The removal of that incumbrance conclusively precluded Hawkins from a rescission of the trade, under the issue of rescission as presented in the pleadings, and therefore the judgment denying plaintiff’s right of rescission was proper. It was also proper to render judgment in favor of Cook against Hawkins for $39.45, found by the jury as the value of certain of the missing implements.

But the verdict of the jury and judgment based thereon for $100 exemplary damages for wrongfully suing out writ of sequestration was erroneous, in that there was no finding of actual damages for suing out that writ. It is too well settled to require the citation of authorities that without actual damages as a basis no exemplary damages can be allowed for a wrongful use of judicial process. Clearly Cook was entitled to a judgment for the property that had been sequestered. If it has been replevied by the plaintiff, then the jury should have determined its value, so that judgment could have been rendered in accordance with the statutory provision governing in such eases. We are not informed by the briefs of either of the parties whether the property sequestered was still in the hands of the sheriff who levied the writ, or whether or not the same had been replevied by one or the other of the parties to the suit. Nor has the jury found the value of said property. Hence the record is not in such condition as to enable us to reform the judgment.

Appellee has presented no cross-assignment of error to the action of the court in ignoring the finding of the jury that Hawkins should return two missing discs, or else pay Cook the value thereof. In other words, apparently, appellee has elected to abandon any claim for those implements. Neither does appellee complain of the failure of the court to, render a judgment in his favor for the property sequestered, which perhaps might be construed as an abandonment of that claim also. But for appellee’s apparent abandonment of those two claims, and his insistence here that the judgment as rendered be affirmed, a serious question might arise whether or not the judgment from which the appeal has been prosecuted was a final judgment.

For the error pointed out the judgment is reversed and the cause remanded for another trial in accordance with the conclusions announced above.
      <g^x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    FOREST OIL CO. et al. v. WILSON et al.
    (No. 8229.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 1, 1915.
    Rehearing Denied June 5, 1915.)
    1. Affidavits <@=55 — Authority to Take— ATTORNEY OF RECORD.
    An attorney of record for a party to an action who is also a notary public is authorized to administer the oath to an affidavit to his client, though it would seem that he cannot act as a notary in the taking of depositions nor in the execution of an instrument requiring acknowledgment, the one act being purely ministerial, and the other quasi judicial.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. <@=>5J
    2. Receivers &wkey;>37 — Appointment—Affidavits.
    Where an affidavit stating reasons justifying the appointment of a receiver without notice, accompanied the petition as shown by a recital in the order appointing the receiver and the date of the me mark, it was properly considered by the court in passing upon the application for .a receiver, though it was claimed that the affidavit was not attached to and made a part of the petition.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. § 62; Dec. Dig. <&wkey;>37.]
    3. Pleading <@=5301 — “Verification.”
    The term “verification,” as applied to pleadings in equity practice, means that an affidavit must be attached to the plea that the facts therein stated are true.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 314, 318, 892-897, 904-906; Dec. Dig. <@=5301.
    For other definitions, see Words and Phrases, First and Second Series, Verification.]
    4.| Corporations <&wkey;557 — Appointment of Receiver — Sufficiency of Petition.
    A petition alleged that plaintiffs were minority stockholders in a corporation; that it had a claim against certain individual defendants for money fraudulently obtained, as shown by an auditor’s report and the books of the corporation ; that one of such defendants had disposed of his stock; that the others had conspired to cause themselves and third parties whom they could control to be elected directors to cancel such claim, or prevent the collection thereof; that such defendants were and such third parties were, as directors, managing the corporation and in the control of its affairs; that the claim would be barred by limitations in a few days; that a receiver should be appointed; that those claiming to be directors were usurpers; and that, if the relief prayed for was not granted, the corporation and its stockholders would suffer irreparable injury. Hold, that the petition was insufficient to authorize the appointment of a receiver, as it stated no cause of action, and sought no relief except the appointment of a receiver, which is merely an ancillary right for the protection of property until the final determination of an action.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2227, 2228, 2230-2236; Dec. Dig. &wkey;>557.]
    Appeal from District Court, Wichita County; J. W. Akin, Judge.
    Suit by G. E. Wilson and others against the Forest Oil Company and others. From an order and judgment appointing a receiver, defendants appeal.
    Reversed and remanded.
    Carrigan, Montgomery & Britain, of Wichita Falls, for appellants. W. F. Weeks, of Wichita Falls, for appellees.
   BUCK, J.

Appellees G. E. Wilson and five others, as plaintiffs, on March 6, 1915, filed suit against the Forest Oil Company, Geo. W. Hazelwood, J. L. Breathwit, and Mrs. Anna Johnson, a feme sole, asking the appointment of a receiver for the Forest Oil Company, a corporation, alleging, in brief, that plaintiffs were minority stockholders in said corporation; that said corporation owned property of the value of 8100,000, and owed debts in the sum of about $15,000, and that among the corporation’s assets was a claim or chose in action against the defendants Hazelwood, Breathwit, and Mrs. Johnson, executrix of the estate of W. W. Johnson, deceased, in the sum of about $20,000; that said claim was for stock promotion expenses and commissions and cash wrongfully and fraudulently obtained by said Hazelwood, Breathwit, and W. W. Johnson since the organization of said corporation, on or about March 12, 1913; that the certain items of money so obtained were more fully shown in the report of the auditor made some six months prior to the filing of the suit, and by the books of said corporation, and that said defendant persons had failed and refused to pay to said defendant corporation any part of said amount, though often requested, etc. It was further alleged that since said auditor’s report said defendant Breathwit had disposed of a major portion of his stock in said company for the purpose of placing it beyond the reach of said Oil Company, and that since said time Hazel-wood and one John Eaton, who was alleged to be the agent of Mrs. Johnson, executrix, had conspired to cause themselves and others named whom they could control to be elected directors of said corporation “for the purpose of canceling said claim held by said corporation, and if not for this purpose, then for the purpose of preventing the said corporation from bringing suit to collect said claim, and if suit should be brought by individual stockholders to collect said claim for said corporation, then to act for said corporation as its board of directors to contest said suit and use every effort to prevent said claim from being collected.” It was further alleged that said Hazelwood and Eaton, the latter as representative for Mrs. Johnson, were claiming to be directors of said corporation, and were claiming that three others named were also directors, and that said Hazelwood and Eaton controlled these three others, and these five persons were, at the time of suit, managing said corporation, and in control of its affairs, books, etc.; that, if the claim was prosecuted by suit, it could and would be collected, but said claim would be barred by the statutes of limitation on March 12, 1915, “or very soon thereafter.” Plaintiff alleged that it would be futile to ask said managers to bring sucb suit, and that a receiver should be appointed to take charge of the affairs of said corporation and to bring this suit and to preserve the records, vouchers, and other papers of the corporation then in the custody of said managers, and to preserve the same as evidence for the purpose of suit. It was further alleged that those who were in charge of the corporation and claiming to be its duly elected directors were not in fact so, but were usurpers, and that the majority of the stockholders were opposed to such persons acting in the capacity claimed, and that the receiver urged to be appointed should take charge of the affairs of said corporation, not only for the reasons aforesaid and to prevent the destruction of the vouchers, warrants, and other evidence mentioned, but to manage the affairs of the corporation until a valid election could be held. It was further alleged that, if the relief prayed for was not granted, “said corporation and its stockholders” would suffer irreparable injury, etc., and there was a prayer for notice to defendant for the appointment of a receiver and general and special relief. This application was verified by the following oath:

“I, G. E. Wilson, being duly sworn on my oath, state that I believe the matters of fact set forth above to be true.”

The oath was administered by W. E. Weeks, notary public, and who was also attorney of record for plaintiffs.

The district court, upon presentation of the petition, and without notice to defendants, entered an order in part as follows:

“On this, the 6th day of March, 1915, came on to be considered the application of the plaintiffs for the appointment of a receiver; and, it appearing to the court, upon said consideration and the affidavit of G. E. Wilson accompanying same, that an immediate necessity exists for the appointment of such receiver, notice of said application is hereby dispensed with.”

By said order the court appointed a receiver with full authority to take charge of all the property and affairs of the corporation, fixing his bond at $20,000, and expressly authorizing him to bring the suit on behalf of the Forest Oil Company, the necessity for which was alleged in plaintiffs’ petition.

Accompanying the petition was the affidavit of G. E. Wilson, referred to in the court’s order, as follows:

“I, G. E. Wilson, one of the partners [parties?] in cause No. 50, G. E. Wilson et al. v. Forest Oil Company et al., pending in the Seventy-Eighth district court of Wichita county, Tex., being duly sworn on my oath, state that an immediate necessity exists for the appointment of a receiver as prayed for in said original petition because of the following facts: That there are certain contracts and vouchers which are of great importance to the said Forest Oil Company in the prosecution of said suit mentioned in said petition; that said papers are now in the possession of the parties named in said petition, and are liable to be lost or destroyed, and, if said papers are lost or destroyed, the said Forest Oil Company will suffer irreparable injury; that there is not time to give the said defendants named in said petition notice of the filing of said application for receiver, and not time to permit a hearing on said notice, for the reason that the suit mentioned in said petition to be brought by said receiver should be brought on or before March 8, 1915, as $1,250 of sai'd amount to be sued on will be barred by limitation on that date or very soon thereafter.”

From the order and judgment of the court, the defendants appealed, and upon the filing of a supersedeas bond a stay of further proceedings was granted by the court.

Appellants and appellees have both filed briefs in this court. In their seventh assignment of error appellants attack the sufficiency of the affidavit of G. E. Wilson to plaintiffs’ petition because it was made before W. F. Weeks, notary public, and also attorney for plaintiffs. Under our law and the authorities of this state, an attorney of record who is also a notary is authorized to administer the oath to his client to an affidavit, though it appears he cannot act as a notary in the taking of depositions, nor in the execution of an instrument requiring acknowledgment. In the former instance his act is purely ministerial, while in the latter it is quasi judicial. Ryburn v. Moore, 72 Tex. 85, 10 S. W. 393; Kosminsky v. Raymond, 20 Tex. Civ. App. 702, 51 S. W. 51, writ of error denied 93 Tex. 688.

By another assignment, complaint is made of the action of the court in considering the affidavit of G. E. Wilson, in which affidavit reasons are set forth which are claimed to constitute a condition of emergency and justify the granting of the application without notice, because, as claimed in the proposition under the eighth assignment, this affidavit was not attached to and made a part of the petition, “and the application cannot be supplemented by a paper found with the papers of the case.” We do not think there is any merit in this assignment. The marginal notation on the page of the transcript containing this affidavit is as follows : “Affidavit of G. E. Wilson accompanying petition.” And the order of the court recites that said affidavit accompanied the petition, and the affidavit and the petition bear file mark of the same day, and hence we hold there was no error in the court’s considering said affidavit in support of the application for the appointment of a receiver without notice.

By another assignment appellants attack the sufficiency of the affidavit to the petition in that the affiant does not make oath to the truth of the facts therein alleged, but merely states “that he believes the matters of fact set forth to be true.” In support of the sufficiency of this affidavit appellees cite us to the case of Continental Trust Co. v. Cowart, 173 S. W. 588, by the Court of Civil Appeals for the First District, which was a suit by minority stockholders against the Continental Trust Company, a corporation, and against other defendants named, in which said petition there was an alternative prayer for the appointment of a receiver, and the petition “was verified by the affidavit of the plaintiff that he believed the allegations and statements contained in the petition were true and correct.” It does not appear that the sufficiency of this affidavit was directly brought in issue, nor that in disposing of the case the sufficiency thereof was given consideration by the court, unless it might be argued that the court impliedly approved such form as being sufficient, in that attention was called to it in the opinion, and no condemnation or adverse criticism was made; but, since the judgment of the trial court in that case was not sustained, the probable or inferential support of this form of verification, which it is claimed the case cited authorizes, loses much of its probative effect. We are inclined to hold that the form of verification as used in this ease does not meet the requirements of the law, and is not in compliance with the requirements of equity practice, by the rules of which matters relating to the appointment of receivers are governed. Article 2155, Vernon’s Sayles’ Tex. Civ. Stat. The term “verification,” as applied to pleadings in equity practice, means that an affidavit must be attached to the plea that the facts therein stated are true. And it was held in Graham v. McCarty, 69 Tex. 324, 7 S. W. 342, that an affidavit that facts set forth in plea to jurisdiction are true to the best of affiant’s knowledge and belief was insufficient; also in Railway Co. v. Pietzsch, 10 Tex. Civ. App. 575, 30 S. W. 1083, that an affidavit to defensive pleadings required to be under oath, to the effect that, ‘T am reliably informed and verily believe them to be true,” is insufficient; that the affidavit must be positive and not hearsay. See Book III, Texas Notes, 893; Book V, Texas Notes, 1151.

But, irrespective of the question of the sufficiency of the verification to the petition, at least a majority of this court are of the opinion that the petition itself is not sufficient to authorize the appointment of a receiver. Where a petition for the appointment of a receiver states no cause of action, there is no right to the appointment of a receiver; such appointment being merely an ancillary right for the protection of property until final determination of the action. Farwell v. Babcock, 27 Tex. Civ. App. 162, 65 S. W. 509; People v. Crawford, 45 S. W. 738; High on Receivers (2d Ed.) § 17. It will be noted that in the petition filed no cause of action is asserted on behalf of plaintiffs against any of the defendants, nolis any recovery sought in this suit, nor relief prayed for, except the appointment of a receiver. It is well said in 34 Cyc. 60:

“Receivers should not be appointed simply because an occasion for their appointment is anticipated, or may arise in the future. The occasion must exist when the appointment is made and past conduct shown.”

If the Forest Oil Company, through its present managers, could not be relied upon to bring the suit described in plaintiffs’ petition, and for the bringing of which a receiver was asked, then the plaintiffs, as minority stockholders, could sue in their own name (Joy v. F. W. Compress Co., 24 Tex. Civ. App. 94, 58 S. W. 173), or they could bring the suit in tE&ir own name and for the benefit of the corporation. In Williams v. Watt, 171 S. W. 266, it was held that courts of equity will not appoint a receiver of a corporation at the suit of a stockholder on the ground of fraud, mismanagement, etc., on the part of the corporate authorities, but will merely enjoin or forbid the wrong complained of.

Appellees cite us to the case of Falfurrias Irrigation Co. v. Spielhagen, 103 Tex. 144, 124 S. W. 616, Id., 103 Tex. 339, 127 S. W. 164, on certified question from the Court of Civil Appeals for the First District, and also the case of Continental Trust Co. v. Cowart, 173 S. W. 588. But, as the Supreme Court in neither discussion of the Falfurrias Irrigation Company Case sustained the sufficiency of the petition for receiver, but upon the first presentation of the certified question from the Court of Appeals (103 Tex. 144, 124 S. W. 616) dismissed the certificate, and upon the second presentation disposed of the question certified, which did not involve the sufficiency of the petition, without discussing the phase here presented, we are unable to see the pertinency of the reference. Moreover, the majority of this court do not think that the pleading in the cited case, as disclosed in the opinion of the Court of Civil Appeals for the First District (129 S. W. 164), discloses a state of facts analagous to those shown in this case.

Because, in our opinion, the petition of the plaintiffs, in failing to assert any cause of action in the plaintiffs as against the defendants, was ineffectual as a means of procedure for the appointment of a receiver, the judgment and order of the trial court in appointing said receiver is hereby reversed, and the cause remanded.
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