Houston & Texas Central Railway Co. v. Geo. H. McFadden & Bro.

We adopt the conclusions of fact filed by His Honor, contained in the record on pages 197 et seq. We also adopt the conclusions of law filed by him on all questions in issue between the appellees, George H. McFadden Bros., and the Houston Texas Central Railroad Company. This course dispenses with an extended discussion of the questions presented. We deem it proper, upon the defense of limitation included within these issues, merely to remark that it rests upon the alleged difference in the corporation known as the Houston Texas Central Railway Company and that known as the Houston Texas Central Railroad Company. We concur fully with the learned judge who tried this case in holding that the relation between the two corporations thus designated is one of substantial identity; that at the time of the institution of this suit the Houston Texas Central Railroad Company was, in truth, sued under the name of the Houston Texas Central Railway Company, under which it permitted its property and its franchises and the line of its railway to be operated; indeed, that the name Houston Texas Central Railway Company was but a cover for the corporation of which the proper name was the Houston Texas Central Railroad Company; that the corporation was the same, whether known by the name of the Houston Texas Central Railroad Company or by that of the Houston Texas Central Railway Company. The shadowy character of the corporate difference insisted upon as a result of the difference in name adverted to is emphasized by this record, in the fact that while the appeal bond is executed by the Houston Texas Central Railroad Company, the assignments of error, and the only assignments of error questioning the action of the court in rendering judgment against that company, are signed by counsel as attorneys for the Houston Texas Central Railway Company. So that, if in fact the technical distinction should be observed by us, it is very questionable whether there are any assignments of error by the Houston Texas Central Railroad Company entitled to consideration as a basis for complaint of the action of the court upon the issues presented by the record between that company and the appellees, McFadden Bros. Stanley, Spoonts Thompson, for plaintiff in error, the Houston Texas Central Railroad Company, assigned the following errors: "The Court of Civil Appeals erred in adopting the second conclusion of law of the trial court, holding that the Houston Texas Central Railway Company, as distinct from the Houston Texas Central Railroad Company, had never been a proper or actual party to the suit, and also in adopting the eleventh conclusion of law filed by the trial court, wherein said trial court held that the Houston Texas Central Railway Company became merged into the Houston Texas Central Railroad Company upon its organization and securing of the franchises of the Houston Texas Central Railway Company. "The Court of Civil Appeals erred in affirming the judgment as to *Page 201 the Houston Texas Central Railroad Company, because the conclusions of law and fact filed by the trial court did not justify the judgment rendered in the trial court, and affirmed by the Court of Civil Appeals, because: First, no liability could be fastened on said company except upon allegation and proof that the Houston Texas Central Railroad Company received the benefit of the earnings of said property after it became the purchaser thereof, either by cash turned over to it or betterments made in its interest after it became the owner of the property; and second, there was absolutely no proof that any improvements were made out of the earnings of the road subsequent to the sale to Olcott, nor was there any conclusion of the court to that effect. "The Court of Civil Appeals erred in holding that the plaintiffs' cause of action as against the Houston Texas Central Railroad Company was not barred by limitation at the time said company was first made a party to this suit. "The Court of Civil Appeals erred in not sustaining appellant's thirteenth assignment of error, which was as follows: The court erred in not rendering judgment in behalf of defendant, the Houston Texas Central Railroad Company, because it was shown on the trial that the Houston Texas Central Railway Company's property was in the hands of a receiver, and sold out by the receiver to one Olcott, and that said Olcott transferred said property to the Houston Texas Central Railroad Company, and that under the order by virtue of which the property was sold at the receiver's sale the same was sold free of all claims arising against the receiver, which should not be established in the Federal Court within six months from the date of said sale; and the proof further showed that plaintiffs did not intervene in said Federal Court, nor in any wise establish their said claim in said court, as provided in the order of said court; and plaintiff's cause of action having arisen against the receiver, the defendant as a purchaser of said property under said Olcott is not responsible to plaintiffs on their said claim.' " Stanley, Spoonts Thompson, for plaintiff in error, Fort Worth New Orleans Railway Company, assigned error as follows: "The Court of Civil Appeals erred in reversing the judgment of the trial court, and rendering judgment against the Fort Worth New Orleans Railway Company, because there was no fact found by the court below, nor by the Court of Civil Appeals, showing that the Fort Worth New Orleans Railway Company, defendant in the court below, was in any wise responsible for the destruction of said cotton, as the same did not occur upon its line of railway, but upon a line of railway in which it had no interest, and over which it had no control. "The Court of Civil Appeals erred in overruling the first conclusion of law filed by the trial court, to the effect that there was no sufficient proof of joint liability or partnership between the Fort Worth New Orleans Railway Company and the Houston Texas Central Railway Company, to hold the Fort Worth New Orleans Railway Company *Page 202 liable for loss occurring beyond the terminus of its own line, and that the loss in this case did not occur on its line, and it therefore was not responsible for said loss. "The Court of Civil Appeals erred in rendering judgment against the Fort Worth New Orleans Railway Company, because there was no conclusion of fact found by the court below nor adopted by said Court of Civil Appeals and made the basis of the opinion, that justified the rendition of any judgment against said Fort Worth New Orleans Railway Company." Railway v. Johnson, 37 S.W. Rep., 243; Ins. Co. v. Railway,104 U.S. 146; Railway v. Neel, 19 S.W. Rep., 963.