Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-05

error immaterial as might have been done
had II been shown that only the items
that were sufficiently specified were con-
sidCred hy the court
II appears from the pleading aud from
the findings Of the court that appellant D.
a privite corporation organized under the
laws OF this state, aud that a large portion
OF the services sued FOR lay appellee were
rendered by HIN 20 the promoters OF np-
peunt. PRIOR TO ITS Incorporation, and
appellant contends that Il cannot be made
liable for such services. The decisions up'
on this question are exceedingly conflict
Ing aud unless we were Informed of the
particular Items mentioned In this account,
which were allowed In making up the iudg-
mcnt, II Is impossible for us to say whether
the action OF the court below IA this res
pCCt was correct or not III may De stated
us general rule TINT corporation cau-
not be made liable against Us WIN upon the
contract OF It's promoters unlc8s auch LA.
blllty Is declared IA IT. charter H. how
ever, the corporation after It's organization
sees proper TO adopt such contracts it Inns
this right. but we think it must do SO cum
ouorc. IL should not hc allowed TO adopt
the good aud reject the bad part OF the
contract; and we believe THIS principle
should be extended 80 na 20 hold that
where the promoters have secured sub
scription for corporation. ana have been
nj expense In employing attorneys In doing
this, II the corporation secs proper to ae-
cept such subscription after IT, orgnniza-
ton aud has knowledge OF the expense
80 incurred. 10 should be required 10 pay
H. We do not see upon what principle
OF fairness the promoters should be re-
qulied TO pay this expense themselves when
the corporation receives all OF the heneht
derived therefrom. From full citation OF
Cooke on stocks and stockholders ana corpora
American upon this question, seen ote 60
coke stock and stockholders and cOporn
tun law, 7UI; also / MarOwlt2 on private
corporations. 5i1-h49 The only Texas case
60 which our attention has been called
bearing upon this subject is Mcdonald NH.
The Bank, "a Texas 500
We are Of opinion that the Judgment OF
the court below should be reversed aud
cooke ON stocks and stocsholders, ana forpo
stephens, Justice, disqualified aud not
No. l35. Jack Httsou. plaintiff in error
vs., G.. y. Gontiy administrator dercn-
dant I'm error Error from the district
court OF Nolan county.
OPINION.
The defendant IN error is the administra-
tor de bonls non OF the estate OF Thomas
Barron, deceased. His predecessor M "A
representative capacity was Katie Barron.
As administrative OF the estate OF Thomas
Barron, she brought this SUIT against W..
w. Bush, j. j. HittsOn and Jack Hittson
TO recover the amount alleged 10 be due
on promlssOry note charged TO have been
ana Jack Hittson and payable ITO the
order OF Kate Barron administrAtriN estate
rendered against these DEFENDANTS Ia favor
Of the successor, g.. \. Gentry administers
tor and defendant IN error. frum thia
Judgment, Jack liittson prosecutes thia
The Judgment was had by default upon
an amended petition.
The original petition described the cause
OF action with other elements OF descrip.
tom as promisaory note for the sum OF
Sl325 and with credits thereon as follows;
500 Sept "a. 1885; SS3ADj Nov. l. 1885
The amended petition on which judg-
ment was taken described the cause OF
action as pronlissory note for the sum
or Si325 without credits
Among other matters assigned az error
"a discussion Of which We valve because
Unnecessary the Judgment rs complained
IN the amount IN the amended, over that
clnimed In the original. petition.
IL ~ apparent that the plaintin In error
was not served with notice OF the amcnded
petition. II may well be npprehended that
u defendant who would not resist de-
mand FOR S30OO.O3 due upon the cause OF
action as described here m the original
petition, would strenerousy contest a claim
| Tor SiS25 rs deacibed In the amended
| petition. This difference according 10 our
calculation was carried Into the judgment
rendered against the plaintiff In error
The cause OF action az set out IN the
amended petition was, we think, a new
cnuae OF action and different from That
originally declared upon Tie defendant
| Jack HittsOn therefore was ia such notice
| he was deprived of the opportunity and
| the right TO contest the demand, the yulidi-
| ~ OF which was decrced against him such
| q judgment Is erroneous Morrison vs. Wal
than - Texas 49, Stewart We Anderson
The Judgment Is reversed ans the cause
remanded TARLroN,
stephens, associate justice, disqualified
and not sitting.
No $50 NJ NJ Hitler ct alo appellants
~ Julia A. Vernoy. .appeleei uplgal irom