
    SMITH v. BRIGGS-WEAVER MACHINERY CO.
    (Court of Civil Appeals of Texas.
    Dec. 10, 1910.)
    1. Account, Action on (§ 6) — Exhibits— Variance.
    Where plaintiff sued defendant as an individual on an account, the petition alleging a cause of action against defendant, doing business as the Southwestern Heating & Ventilating Company, while the verified account attached to the petition as an exhibit stated an account in favor of plaintiff against the company, the petition and the exhibit were contradictory and subject to exception for variance.
    [Ed. Note. — For other cases, see Account, Action on, Cent. Dig. § 12; Dec. Dig. § 6.]
    2. Corporations (§ 625) — Officers — Individual Liabilitt — Pleading.
    A director of a corporation, the franchise of which had been forfeited for failure to pay the franchise tax, could not be made individually liable on an account for goods sold to the corporation, where plaintiff’s petition did not specially plead the facts showing such forfeiture and personal liability under Laws 30th Leg. c. 23, § 8.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. § 625.]
    3. Evidence (§ 158) — Best Evidence — Record-Matter of Proof.
    The records in the office of the Secretary of State cannot be proved by the depositions of such officers; copies of the records being the best evidence.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 492-506; Dec. Dig. § 158.]
    4. Evidence (§ 341) — Records — Sworn Copt.
    A sworn copy of the records in the office of the Secretary of State showing a forfeiture of the franchise of a corporation is sufficient to prove the facts.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1289-1292; Dec. Dig. § 341.]
    Appeal from Dallas County Court; W. M. Holland, Judge.
    Action by the Briggs-Weaver Machinery Company against J. H. Smith. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    M. L. Robertson and W. H. Clark, for appellant. Burgess & Burgess and M. N. Chrest-man, for appellee.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BOOKHOUT, J.

Appellee, Briggs-Weaver Machinery Company, filed this suit on February 17, 1909, in the county court of Dallas county at law, against appellant, J. H. Smith, to recover $715.02, upon account for merchandise alleged to have been sold to him.

It is alleged: “That defendant, J. H. Smith, was, on the dates hereinafter set out, doing business under the name and style of the Southwestern Heating & Ventilating Company, with its domicile and place of business in the city and county of Dallas, state of Texas.” The prayer of the petition is against defendant, J. H. Smith. An itemized account is attached to said petition, referred to and made a part thereof, and is in favor of Briggs-Weaver Machinery Company and against the Southwestern Heating & Ventilating Company. It is verified by appellee’s vice president as follows: “The above and foregoing account in favor of said corporation (the Briggs-Weaver Machinery Company) and against the Southwestern Heating & Ventilating Company, aggregating the sum of $715.02, is within the knowledge of the affiant just and true, and is now due, and that all lawful offsets, payments and credits have been allowed.” The defendant, J. H. Smith, answered specially excepting to said petition, because it appeared from the verified account attached thereto and made a part thereof that said merchandise was sold and charged to the Southwestern Heating & Ventilating Company, while the allegations of the petition were that the merchandise was sold and charged to J. H. Smith, a variance between said petition and said account, showing that the Southwestern Heating & Ventilating Company, and not J. H. Smith, should have been the defendant; a general denial; a denial of said account under oath stating that it was not just or true, in whole or in part; that he had never purchased or had said goods charged to him; that he had never at any time conducted business in or under the name of the Southwestern Heating & Ventilating Company; that the Southwestern Heating & Ventilating Company was, at the time of the several purchases mentioned in plaintiff’s said petition and verified account, a corporation, duly incorporated and organized under the laws of the state of Texas, and that plaintiff sold and charged said merchandise to it, and not to defendant. That at the -time of said sales, he, the defendant, was the manager of said corporation, the Southwestern Heating & Ventilating Company, but in no wise assumed or became personally liable ■or obligated for its account, or any part thereof. The case was tried with a jury on September 28, 1909, and when the parties had introduced their evidence and closed, the court charged the jury as follows: “You are instructed to return a verdict in favor of plaintiff and against defendant for $715.02, with 6 per cent, interest from January 1, 1909.” The jury returned a verdict as instructed and the court rendered judgment in favor of the plaintiff and against the defend.ant, J. H. Smith, for $715.02, with 6 per cent, interest thereon per annum from January 1, 1909, and for all costs of suit. Defendant’s ■motion for new trial having been overruled, he perfected an appeal.

Error is assigned to the court’s action in overruling defendant’s exception to the plaintiff’s petition. The petition alleged a cause of action against J. H. Smith, doing business as the Southwestern Heating & Ventilating Company. The exhibit attached to the petition and made a part of it evidences an account in favor of Briggs-Weaver Machinery Company against the Southwestern Heating & Ventilating Company, duly verified under the statute. The petition and exhibit are contradictory, and the exception should have been sustained. Freiberg v. Magale, 70 Tex. 116, 7 S. W. 684; Ralston v. Aultman, Miller & Co., 26 S. W. 746; Weems v. Sheriff of Brazoria County, 48 Tex. 481; Hensley v. Degener, 25 S. W. 1130.

We are of the opinion the court ought not to have given defendant’s requested charge, instructing a verdict in his favor. Had defendant’s special exception to the petition been sustained, then the plaintiff would have had the right to amend and set up other facts. It was shown that there had been a forfeiture of the right of the Southwestern Heating & Ventilating Company to do business in the state, declared by the Secretary of State on July 2,1909, because of its failure to pay its franchise tax due May 1, 1907, and an indorsement to that effect entered on the records of his office.

Section 8, c. 23, Laws 30th Leg. First ■Called Session, provides: “Any corporation, either domestic or foreign, which shall fail to pay any franchise tax provided for in this Act when the same shall become due and .payable under the provisions of this Act, shall thereupon become liable to a penalty of twenty-five per cent, of the amount of such franchise tax due by such corporation, and if the amount of such tax and penalty be not paid in full on or before the 1st day of July, •thereafter, such corporation shall for such default forfeit its right to do business in this .State, which forfeiture shall be consummated without judicial ascertainment by the Secretary of State entering upon the margin of the record kept in his office relating to such corporation, the words ‘right to do business forfeited,’ and the date of such forfeiture, and any corporation whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any other courts of this State, except in a suit to forfeit the charter of such corporation, and in any suit against such corporation on a cause of action arising before such forfeiture no affirmative relief shall be granted to such corporation unless its right to do business in this State shall be revived as provided by this Act. And each and every director and officer of any corporation whose right to do business within this State shall be so forfeited, shall as to any and all debts of such corporation which may be created or incurred, with his knowledge, approval and consent, within this State, after such forfeiture by any such directors or officers, and before the revival of the right of such corporation to do business, be deemed, and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporation were partners.”

It is argued that this statute creates a cause of action and that the suit was brought to recover on the cause of action given by the statute. A sufficient answer to this contention is that the suit is not based on the statute and the petition does not allege a cause of action within the statute. If plaintiff desired to recover on a cause of action created by the statute, it should have specifically pleaded the facts which show a cause of action under the statute.

Again, error is assigned that the court erred in admitting in evidence the testimony of W. R. Townsend, Secretary of State, to the effect that the records of the office of Secretary of State showed that the right to do business by the Southwestern Heating & Ventilating Company was forfeited July 2, 1907. The propositions presented are: (1) The contents of the records of the Secretary of State and of all public officers of this state cannot be shown by the deposition of the officer to whose office it belongs, and said testimony should have been excluded; (2) said testimony of the witness was secondary, hearsay, and not the best evidence thereof, and was not admissible over defendant’s objection. The deposition of the Secretary of State was not admissible to prove a matter of fact shown by the records of his office. Copies of. the records are the best evidence. Stafford v. King, 30 Tex. 259, 94 Am. Dec. 304; Bass v. Mitchell, 22 Tex. 285. The evidence of Townsend not only stated what the records of his office showed, but went further and gave a copy of the records showing the forfeiture, which was sworn to. This was sufficient.

The judgment is reversed, and the cause remanded.  