The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-20
SYNOPSIS
or Decisions of the Court Of Appeals
Galveston Term, 1850.
Reported for TIE Galveston News by q. )
Eaton, OF the Galveston bar,


Reported for the Galveston News by 0. $,
Eaton, OF the Galveston bar.
w. II. Evans VS.. j. NJ. Brandon ct al. APP
peal from Galveston. Opinion by Gould, j.
BY Encouragement and gross neglect of
duty on the part of defendants rs directors of
the Texas Banking and Insurance company,
il Is alleged that the company suffered heavy
losses, and in consequence thereof plaintiff
was injured in the deprecated value Of his
stock. The object of the suit is to recover of
the stock holders damages for this deprecia-
ton in value of his stock. On principle and
authority II Is clear that the liability of drec-
tors for a breach of duty that Injuries the
corporation property asa whole, is primarily
to the corporation whose agents they are. A
recovery by the corporation for such an in
Jury would enure to the benefit of its stock.
holders, and in that way would be compen.
stated for the indirect injury re-
ceived. If the corporation refuses
TO sue, or is still under the con-
troll of the directors sought to be held respon-
sible, a stakeholder may maintain an eQuita-
bic proceeding to protect the interest Of the
corporation as the trustees for all its stock
holders and creditors. A fatal defect in tho
plaintiffs petition, both original and
amended, Is that IL seeks no recovery in be-
half of the corporation, but seeks direct re-
covery of damages for the plaintiff individ-
ually, the case stated not emitting him to
such q recovery. Directors of moneyed cor
porations, such as banks, have often had ell
tsrged liabilities imposed upon them by stat
ute, and case is referred 70 by counsel for
appellant, where, in the absence Of statutory
provisions, they have been held directly ac-
countable to special depositors. y y
The great current of authority, we think,
denies to stockholder the relief sought in
this CASE Affirmed.
Central II Montgomery railroads Vs. w. +.
Henning OF al. Appeal from Grimes. Opin-
ion by bonner, j. The legal effect of the
original petition, filed May l6, 1879, by APP.
pelIee Henning, was to charge Hyatt, indi-
vidually, with $55l 06, and to subject the
property of the defendant company to lien
for its payment. On June 10, 1879, the day
of trial, Henning dismissed the cause, as
Hyatt, who was anecessary party, if the cause
Of action, as set out in the original petition,
was relied on, and by amended petition that
day filed, sought not only to make the prop
erty liable, but for the first time, to subject
the company to direct Judgment for the
debt itself. This, we think, was such ma
teral change in Henning's cause of action as
to have Justly entitled defendant, on his att-
davit therefor, to acontinuance on the ground
of surprise The continuance should have
been granted for the testimony of Hyatt, as
prayed for in the motion. 1t was shown to
have been material, and the want of statutory
diligence was sufficiently excused to bring tho
application, if not within the letter. at least
within the spirit of the statute. That tho
case previously presented by the intervenors
as to their separate claims, may have been
substantially against the company in the first
instance and not against Hyatt, should not
have affected the rights of the defendant as
between it and the plaintiff Henning. The
company was simply called upon to meet the
case as made by the peadings of each party,
and might not on the trial have contested the
demands of the intervenors. There was error
also, in so much Of the Judgment as gave to
Henning and the intervenors a lien on the
road-bed, etc., for work and labor done pre-.
viously to February Is, 1879 the date of the
act under which the lien is claimed. Section
30, art. xvi, Const, 1876, did not give to Ia
bores on railroads lien on the property of
the company upon which they expended la
Dor, as was provided by succeeding article 81
to mechanics, artisans and material men. and
whatever lien can be claimed to appellees
must be by virtue of the act of February IS.
1873. (Appendix to II. S., c. 1t does not
become necessary in this case to decide the
very grave question whether the Leg
isature, even with the aid of the CON
sttutional provision, could for the ultimate
payment of any and all liabilities which a
contractor might incur without the knowl-
edge or iault OF the owner give lien upon
the property OF the owner for an amount be-
yond thato the contract prices this liability
TO be liked by some proceedings in the nature
OF sarnishment as by statutory notice, as
provided by previous and existing laws in
regard to mechanics liens. p. d., art. 1885
.; X. s., art. SlI6l. Neither does il become
necessary under the construction we give to
the statute, to decide the question, if indeed
1t DO an open one, whether the Legislature
has the constitutional power to engraft with
out the consent Of parties, upon a previously
existing contract, a stipulation not only for a
lien where none existed before, but for tone
prior TO all Others" Const. 1876, art. /.
sec. l6] If 1t be admitted that this
could be done, It would be in cases
only where this legislative inten-
lion was clearly shown. Our con.
struciion of the statute is, that II was intend
ed to give the lien only for labor performed
after the passage and not before. We do
not think the objection well taken that the
Judgment ordered the Sheriff of Grimes
county TO sell the road-bed, the same bein0
in another county. Under the act formerlS
IN force. the road.bed, track, franchise and