Specht v. Bookhout , 14 Tex. Civ. App. 443 ( 1896 )

Appellees concede the correctness of the following statement of the nature and result of this suit, given by appellant W.C. Holland:

Appellees, John Bookout and Lauch McLaurin, brought this suit in the County Court of Wichita County, Texas, April 6, 1894, against Herman Specht, on three drafts drawn by the Lone Star Elevator Company on said Specht, November 10, 1893, all payable to appellees, for $75 each, and due on the 1st days of February, March and April, 1894, respectively, all of which, it was alleged, said Specht accepted.

Specht answered and set up that he had theretofore, and prior to November 10, 1893, leased the elevator at Iowa Park, Wichita County, belonging to said elevator company, and had promised to pay as rent for same $75 on the first days of February, March and April, 1894, and that the drafts sued on by appellees were drawn on said rents; that on November 17, 1893, all the property of said company was put in the hands of W.C. Holland, as receiver, by the Circuit Court of the United States for the Northern District of Texas, and that said Holland at once qualified and took charge of said property and demanded the rent for said Iowa Park elevator for the months above named, and that he had paid him the same. Said Specht asked that said receiver be made party defendant, and that he have judgment over against him for all moneys paid, as aforesaid, in event of recovery against him by appellees. Said Holland was thereupon made a party.

On September 1, 1894, appellees filed an amended petition, in which they made said receiver party, and asked judgment against Specht upon the aforesaid drafts, and two others of like import, payable May 1, and June 1, 1894, which had meantime matured. They further pleaded that if said Specht had not accepted said drafts, they had operated an assignment in equity of said rents, as each draft was specifically drawn on rent for said elevator for the month on the first day of which it was made payable.

To the action on said five drafts said Specht by amended answer pleaded substantially the same matter theretofore pleaded with reference to the three first sued on, with the additional allegation that said Lone Star Elevator Company was an insolvent, "non-going" corporation when said drafts were drawn, and that the drawing and delivery of same to appellees was an attempted preference of them as creditors by said company.

Said receiver answered that he was appointed receiver of all the property of said Lone Star Elevator Company, November 17, 1893, by said Circuit Court in the suit of Arbuckle Brothers against said company,filed in said court November 10, 1893, to foreclose a mortgage on said property duly executed by said company and recorded in March, 1892; that on same day he qualified and took charge as receiver; that he demanded rent for said Iowa Park elevator from Specht under the aforesaid lease, and that he attorned to and paid him rent up to May 1, 1894, but refused to pay further; that said Specht occupied and used said leased premises until and including June 30, 1894; that said elevator company could not anticipate the rents to accrue on said mortgaged property by assignment, as it was attempted to do, and that said company, at the time of the drawing of said drafts was an insolvent, "non-going" corporation, and that the giving of said drafts was an attempted preference of appellees, its creditors.

Appellees, by supplemental petition, demurred generally to the answers of said Specht and said receiver, and denied the allegations of same, and specially excepted to all that portion of said Specht's answer setting up the insolvency of said elevator company.

Said cause was tried by the court without a jury on December 19, 1894. The exception of appellees to so much of said Specht's answer as pleaded the insolvency of said elevator company was sustained, and judgment was rendered for appellees against said Specht for the full amount sued for, and in favor of said Specht over against said receiver for the rent collected by said receiver for the months of February, March and April. Both Specht and Holland have appealed. Opinion. — We reverse and remand this cause because, in our opinion, the court erred, as complained in the first assignment of appellant Herman Specht, in sustaining appellees' exception to so much of Specht's amended answer as alleged the insolvency of the Lone Star Elevator Company. Though denominated by appellees a special exception, it was general in terms, and was in legal effect a general demurrer. In form the pleading excepted to was good as against a general demurrer.

It is now the settled law in this State that the assets of an insolvent private corporation which has ceased to carry on its business constitute a trust fund for the payment of its debts; and that a corporation in such condition can do no act that would prevent its assets from being so applied. Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 86 Tex. 143.

This doctrine is not disputed by appellees' counsel, but the contention seems to be, (1) that Specht not being a creditor of the Lone Star Elevator Company, the alleged insolvent corporation, he cannot invoke the rule referred to; and (2) that his coappellant, Holland, was allowed to and did plead the same defensive matter, and therefore appellant Specht is not injured.

Specht might have declined paying the rent to either appellees or the receiver of the corporation until their conflicting claims were adjudicated; but he also had the right, at his peril, to elect to whom to pay it; and if he elected the one to whom the law would have awarded it had he impleaded them before payment, he is not liable to the other. Nor is the error complained of cured by the fact that Holland, a codefendant, pleaded the same defense without objection. Specht had no right to offer testimony under a plea made by his codefendant, and it would not be just to limit his right in this regard to such proof as his codefendant might see proper to make. He had the right to interpose his own defense and to decide for himself what evidence he would offer in support thereof.

The judgment is reversed and the cause remanded.

Reversed and remanded.