
    FIRST NAT. BANK OF ASPERMONT v. CONNER et al., Judges of Court of Civil Appeals.
    (No. 2331.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    1. Coubts (§ 247) — Supreme Court— Certification op Questions by Court op Civil Appeals
    Under Act May 9, 1899 (Acts 26th Leg. c. 98; Rev. St. 1911, art. 1623), providing that whenever any of the Courts of Civil Appeals may arrive at an opinion in the decision of any cause in conflict with the opinion rendered by some other Court of Civil Appeals on any question of law, and such court refuses to concur with the opinion so rendered by such other court, it shall be its duty to transmit the. question of law duly certified, together with the record or transcript, to the Supreme Court for adjudication, where there is a clearly defined conflict between the decision of a Court of Civil Appeals and an earlier decision of another Court of Civil Appeals, it is the duty of the court to certify the question to the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §| 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    2. Courts (§ 247) — Supreme Court — Certification op Questions by Court op Civil Appeals.
    A decision of a Court of Civil Appeals, that the execution of a building contractor’s bond by a corporation chartered for the purpose of buying and selling lumber and other building material was an ultra vires act, was in conflict with an earlier decision of another Court of Civil Appeals that the execution of a statutory liquor dealer’s bond by a corporation chartered for the conduct of a wholesale and retail liquor business was not ultra vires, though there was no express or implied agreement by the liquor dealer to purchase goods from the corporation, because the furnishing of aid to the dealer was a means calculated to obtain custom for the corporation and within its implied corporate powers, and hence the court should have certified the question to the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Petition by the First National Bank of Aspermont for a writ of mandamus against T. H. Conner and others, Judges of the Court of Civil Appeals for the Second District.
    Writ awarded.
    Theodore Mack, of Ft. Worth, for relator.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   PHILLIPS, J.

This is a proceeding for a writ of mandamus to require the judges of the honorable Court of Civil Appeals for the Second District to certify for the decision of this court a question determined by them in the case of W. C. Bowman Lumber Co. v. Pierson et al., adversely to the relator, an appellee in the case. 139 S. W. 618.

The jurisdiction of the Court of Civil Appeals was final in the case, it having been appealed from a county court and not being within any of the exceptions of the statute providing that the jurisdiction of the Courts of Civil Appeals shall be final in such cases; and, the motion to certify the question having been duly made upon the ground that the decision was in conflict with that of another Court.of Civil Appeals, it was the duty of the court to certify it, provided there was a clearly defined conflict between the two decisions. Act of May 9, 1899 (Laws of 1899, p. 170); article 1623, R. S. 1911; McCurdy v. Conner, 95 Tex. 246, 66 S. W. 664.

The question determined by the Court of Civil Appeals was that the lumber company, a corporation chartered for the purpose of buying and selling lumber and other building material, was not liable on its undertaking as a surety upon the bond of Robinson, a building contractor, executed in favor of the relator to secure the performance of a building contract, because its act in signing the bond was ultra vires and void. The decision is claimed to be in conflict with the holding of the Court of Civil Appeals for the Fourth District' upon the same question in Munoz v. Brassel, 108 S. W. 417. In the latter case the Houck & Dieter Company, a corporation chartered for the conduct of a wholesale and retail liquor business, signed as surety a statutory liquor dealer’s bond with one Vidal as cosurety. In a suit upon the bond it was discharged in the trial court, but Vidal was cast. Upon his appeal Vidal contended that, unless there was an express or implied agreement on the part of the principal in the bond to purchase goods from the corporation, as an inducement for it to sign the bond in the promotion of its business, its becoming a surety upon the bond was an ultra vires act and void, rendering the bond invalid and unenforceable because of the requirement of the law that it should be signed by two lawful sureties. The court, in its opinion by Chief Justice James, ruled against this contention, expressly holding that the corporation was not without the power to execute the bond, though such an agreement was not shown; that furnishing aid to the principal by signing his bond was a means calculated to obtain custom for the corporation and thus promote its interest, and that its act was accordingly within its implied corporate powers.

For the same reason, if that decision is correct, becoming a surety upon a building contractor’s bond is not violative of the charter powers of a corporation engaged in the sale of building material. It would be deemed, according to such ruling, equally an act promotive of the business of the corporation.

The two decisions are in evident conflict, and the writ of mandamus is, accordingly, awarded.  