Chambers v. White (90 S.W.2d 323, 1935)

HALL, Justice.

The following statement of the case is agreed by the parties as being correct, and is adopted by the court:

“This action was brought in the district court of Bowie county, Tex., by Joseph White, a minor, who sued by his sister, Oleane White, as next friend, against D. A. Chambers, L. C. Baker, and Sam H. Smelser, as executors of the will of Miss Jennie Tapp, deceased. In the record the suit is sometimes styled ‘Oleane White et al., Plaintiffs,’ and again as ‘Joseph White, by Oleane White, as Next Friend, Plaintiff.’

“The object of the suit was to recover from the appellants, as executors of the will of Miss Jennie Tapp, deceased, the sum of $1,000, and interest thereon alleged to be due the said Joseph White, as the result of an alleged oral contract made between Miss Jennie Tapp, deceased, and Joe White, the father of Joseph White, the minor, whereby there was transferred to Miss Jennie Tapp by Joe White, the father, acting for his minor son, ten shares of stock of the par value of $100 each, in the Farmers State Bank of New Boston, Tex.; and it is alleged that, as consideration for such transfer of stock, Miss Jennie Tapp orally agreed, within a reasonable time, to pay par therefor — that is, the sum of $1,000.

“The contract sued upon was alleged to have been made on or about February 1, 1927, and it was further alleged that Miss Jennie Tapp died testate on the 19th day of May, 1932, without having paid any portion of the alleged contract price of $1,000 for the shares of stock.

“The appellant answered by interposing a general denial, and alleged that, if any stock in the Farmers State Bank was ever issued in the name of the appellee, Joseph White, a minor, it was so issued at the direction of Joe White, appellee’s 'father, who at all times was the owner of same, and caused the same to be issued in the name of appellee, with a view and purpose of illegally avoiding the liability fixed by law upon stockholders of such bank.

“The appellants further alleged, in substance, that about the 1st of December, 3926, the Farmers State Bank, on account of great losses in its assets, was in imminent danger of being closed on account of its insolvency, by the banking commissioner of Texas, and it became necessary for said bank to have paid into, and become a part of its assets by some one, at least the sum of $50,000; that at this time the deceased, Miss Jennie Tapp, was a large stockholder in said bank, and was solicitous that said bank should be kept open; and that all the stockholders in said bank were at said time in imminent danger of having an assessment levied against them, which would render valueless all stock owned by them in such bank, including the stock then in fact owned by Joe White, but $1,000 of which was standing in the name of appellee.

“That thereupon Miss Jennie Tapp made a proposition to a number of stockholders .of said bank, including Joe White, the father of appellee, and who was in fact the owner of said stock, that, if they would surrender to her their stock in said bank, she would pay over to said bank, to become a part of its assets, the sum of $50,000; that this proposition upon the part of Miss Jennie Tapp was conveyed to the said Joe White, who in fact owned and claimed the right to represent the appellee with respect to the stock standing on the books of said bank in the name of appellee, and he thereupon readily, and with the purpose and desire to avoid an assessment upon said stock, caused the same to be transferred in blank, and delivered to Miss Jennie Tapp, as did other stockholders to whom the same proposition was made by Miss Jennie Tapp, whereupon she paid over to said bank the sum of $50,000, which became a part of its assets, and rendered it thence afterwards a solvent bank.

“The appellants further allege that no such contract as alleged by the appellee was made between him and Miss Jennie Tapp, deceased, nor was any such contract made for the benefit of appellee by Joe White or any one else.