author: LOONEX, J.

text:
    PAVLIDIS et al. v. BISHOP & BABCOCK SALES CO.
    No. 10933.
    Court of Civil Appeals of Texas. Dallas.
    July 18, 1931.
    Roy W. McDonald and Dallas C. Biggers, both of Dallas, for appellants.
    Saner, Saner & Jack, of Dallas, -for appel-lee.
   LOONEX, J.

The Bishop & Babcock Sales Company sued Paul Pavlidis and Sam Katsidonis, partners conducting the Lyric Café at Houston, Tex., on a series of 20 notes aggregating $475.90, and to foreclose the lien of a chattel mortgage on a soda fountain, given by defendants to secure payment of the notes. Defendants in due form pleaded their privilege to be sued in Harris, the county of their residence. Plaintiff controverted the plea, contending that the notes executed by defendants were payable in Dallas county, and that venue was properly laid under subdivision 5 of article 1995, R. S. 1925. On trial of the contest, plaintiff was permitted, over an appropriate objection urged by defendants, to introduce in evidence, without proof of execution, the notes and chattel mortgage sued upon. Defendants’ plea of privilege was overruled; they appealed, and by appropriate assignments and propositions present for our consideration the questions discussed below.

The contention of defendants is that their plea of privilege operated as a sworn denial of the alleged execution by them, or by their authority, of the notes and mortgage, and put plaintiff upon proof by extrinsic evidence, of their execution; hence the court erred in admitting same over their objection.

At the time this case was submitted, April 18, 1931, there was pending in tbe Supreme Court, unanswered, this precise question, that arose in Berry v. Pierce Petroleum Corporation, 39 S.W.(2d) 824, 825, and was certified by us for adjudication, because of conflicting decisions of our appellate courts. Tlie Supreme Court, answering the question, held that the sworn plea of privilege, as regards the determination of the plea, “has effect to put the plaintiff; to proof, by extrinsic evidence, of the fact of execution by the defendant, or by his authority, of the said contract as alleged,” meaning, the written contract relied upon to fix venue.

The Supreme Court, in ironing out the conflict, inferentially adopted the view theretofore expressed by the Fort Worth court, in Ray v. W. W. Kimball Co. (Tex. Civ. App.) 207 S. W. 351, by the San Antonio court, in Bledsoe v. Barber (Tex. Civ. App.) 220 S. W. 369, by the Eastland court, in Ketner v. J. M. Radford Grocery Co. (Tex. Civ. App.) 299 S. W. 680, 681, and by implication overruled contrary holdings of the Fort Worth court in Borschow v. Waples-Platter Grocery Co. (Tex. Civ. App.) 223 S. W. 872, and of the Commission of Appeals, in Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S. W. 550, and thus definitely settled the doctrine that a swom plea of privilege, without further pleading, operates as a sworn denial of the execution by the party urging the plea, or by his authority, of a written instrument relied upon by contestant to bring the case under the exception, and easts upon him the burden of proving, by extrinsic evidence, the execution of the alleged instrument.

Appellants contend, however, that the writing relied upon by plaintiff to fix venue in Dallas county is against public policy, and void; that it is an attempt, by contract, to fix venue determinable by subsequent events under the control of appellee, and therefore is not a contract to perform an obligation in a particular county within the meaning of subdivision 5 of article 1995.

The obligation, in each of the notes relied upon to fix venue in Dallas county, after naming the date of maturity, proceeds: “For value received the undersigned promise to pay to the order of The Bishop & Babcock Sales Company, either at its branch office at 1107 Jackson Street, Dallas, Texas, or at its principal office, 4901-4915 Hamilton Avenue, in the City of Cleveland, Ohio,” etc.

In support of their contention, appellants cite General Motors Acceptance Corporation v. Christian (Tex. Civ. App.) 11 S.W.(2d) 620, Turner v. Ephraim (Tex. Civ. App.) 28 S.W. (2d) 608, La Salle County Water Imp. Dist. No. 1 v. Arlitt (Tex. Civ. App.) 279 S. W. 344, and International Travelers’ Ass’n v. Branurn, 109 Tex. 543, 548, 212 S. W. 630, 632, but after careful examination we failed to find that either of these cases is in point. In the two first mentioned, the provisions relied upon to fix venue designated no particular county or counties for performance, but left the matter entirely open to be determined later by the obligee. The court held in each case that the obligation was insufficient to fix venue because no particular county was designated as the place of performance, and further that the same attempted to fix venue by contract. We cannot agree to the latter suggestion; that is, that venue cannot be fixed by contract. The right to be sued in the county of one’s residence is a privilege that may be waived by agreement, and, unless the agreement fixing venue contravenes a statute, it is, in our opinion, valid and enforceable; in fact, venue fixed under subdivision 5 of article 1995, rests altogether upon contract. See Fort Worth Board of Trade v. Cooke, 6 Tex. Civ. App. 324, 25 S. W. 330; Texas Moline Plow Co. v. Biggerstaff (Tex. Civ. App.) 185 S. W. 341; Merchants’, etc., v. First Nat. Bank (Tex. Civ. App.) 192 S. W. 1098, 1103; Allis-Chalmers Mfg. Co. v. Mitchell (Tex. Civ. App.) 283 S. W. 560. The case of La Salle County Water Imp. Dist. No. 1 v. Arlitt, supra, was not brought for a breach, but was based upon the fact that the contract had been repudiated prior to the time performance was due; hence its provisions as to venue were not brought under review. In International Travelers’ Ass’n v. Branum, supra, there was involved the validity of a provision in an insurance contract attempting to fix venue in, contravention of a statute. The •Supreme Court held the provision against public policy. The court said: “We are convinced that it is utterly against public policy to permit bargaining in this state about depriving courts of jurisdiction, expressly conferred by statute, oyer particular causes of action and defenses.”

Venue, under subdivision 5 of article 1995, results from an agreement to perform obligations in a particular county. Gottlieb v. Dismukes (Tex. Civ. App.) 230 S. W. 792. Exceptions that permit suits to be brought in a county other than that of the residence of defendant are for the benefit of plaintiff, and confer upon him the right to choose between the different counties. Carro v. Carro, 60 Tex. 395; Taliaferro v. Warren (Tex. Civ. App.) 30 S.W.(2d) 393, 394. Contracts requiring performance, primarily in a particular county, but containing an alternative provision, requiring performance in another county dependent upon a future event, have been held sufficient to fix venue under the exception. See Morgan v. E. Bement & Sons, 24 Tex. Civ. App. 564, 59 S. W. 907, 910; Newman v. Buffalo Pitts Co. (Tex. Civ. App.) 160 S. W. 657; McCray, etc., Co. v. Simms (Tex. Civ. App.) 268 S. W. 275. The defendants, for a valuable consideration, obligated themselves to pay the notes, at the option of payee, in Dallas county : this option having been exercised by plaintiff, and defendants having defaulted, plaintiff was, in our opinion, authorized by the terms of the contract to declare all notes of the series due and payable, and to institute suit thereon in a court of proper jurisdiction In Dallas county. We adopt as pertinent language made by the court in Merchants’, etc., v. First National Bank (Tex. Civ. App.) 192 S. W. 1098, 1103; the court said: “* * * While parties cannot by agreement or waiver confer jurisdiction on courts as to the subject-matter, it is generally recognized that a defendant may waive his privilege to be sued in a particular county. It seems to us, where the venue stated gives to plaintiff the right to bring his suit in two or more places, he has the right of election as to which place he will institute the proceedings. * ⅜ * ”

The judgment is reversed because the court erred in admitting in evidence, without, proof of execution, the notes and mortgage sued upon, but, in view of the unsettled status of the procedure arising from conflicting decisions of our appellate courts, we do not render judgment, hut remand the case for further proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: JACKSON, J.

license: Public Domain

text:
    UNITED STATES TORPEDO CO. v. HUFF et al.
    No. 3581.
    Court of Civil Appeals of Texas. Amarillo.
    April 1, 1931.
    Rehearing Denied May 13, 1931.
    Collins & Houston, of Dallas, and Ben W. Tipton, of Electra, for appellant.
    Bunnenberg & Nelson, of Wichita Falls, for appellees.
   JACKSON, J.

The plaintiffs, Minnie Huff and her husband, instituted this suit in the district court of Wichita county, Tex., against the defendant, United 'States Torpedo Company, a corporation, to recover damages for injuries sustained by Mrs. Huff on account of the alleged negligence of the defendant in causing a collision between the automobile of plaintffs and the automobile of the defendant.

The plaintiffs alleged that the defendant, through its agent, was negligent in operating its automobile at an excessive rate of speed; in failing to keep a lookout; in failing to stop; in failing to have the automobile under control; in failing to use a different part of the highway in negotiating the crossroads and in attempting to- pass in front of the automobile of the plaintiffs. That, as a proximate result of defendant’s said negligence, a collision occurred between the automobile of plaintiffs and the automobile of the defendant. resulting in personal injuries to the plaintiff Minnie Huff to plaintiffs’ damages in the sum of $10,000, and to their automobile in the sum of $12.

The defendant answered by general demurrer, numerous special exceptions, general denial, and alleged that the plaintiffs were guilty of contributory negligence in operating their automobile on a public highway at a rate of speed in excess of 45 miles per hour; in failing to keep a lookout; in driving upon the wrong side of the highway; in failing to sound a warning; in failing to steer to the right after discovering that a collision was imminent and in operating their machine with defective brakes.

On the answer of the jury to special issues submitted by the court, which, for the purposes of this appeal it is unnecessary to set out, judgment was rendered in favor of plaintiffs and against the defendant for the sum of $2,822, with interest thereon at the rate of 6 per cent, per annum from the date thereof, from which judgment this appeal is prosecuted.

The appellant, by proper assignment, attacks as erroneous special issue No. 1, as submitted in the court’s main charge, which issue, in substance, is whether the accident in question was avoidable, because, under the pleading and evidence, the appellant was entitled to have the issue of unavoidable accident affirmatively submitted so as to place on appellees the burden of proving that the collision in controversy was not the result of an unavoidable accident.

The court, after defining a number of other legal terms, advised the jury in his main charge that “avoidable accident is an accident which occurs as a result of the negligence of either or both of the parties involved in such accident,” which is immediately followed by special issue No. 1, reading: “Do you -find from a preponderance of the evidence that the accident in question was avoidable?”

The appellant objected and excepted to the above special issue, the form, thereof, and the definition given in connection therewith', because it failed to place the burden of proof on the plaintiffs to show that the collision was not the result of an unavoidable accident, but, as submitted, was no more than a submission of a general issue of negligence.

“A charge does not place the burden of proof upon either party, where it simply instructs the jury to determine issues from the preponderance of the evidence.” Kerr v. Blair, 47 Tex. Civ. App. 406, 105 S. W. 548, 552. Writ refused.

In Moore v. Orgain (Tex. Civ. App.) 291 S. W. 583, the only issue submitted to the jury was in'the following language: “Do you find from a preponderance of the evidence that the paper upon which the defendant, Orgain, signed his name was attached to or a part of the contract to which it is now attached, at the time he signed his name? Answer yes or no.” This issue was objected to because it improperly placed upon the appellant the burden of proof. The Court of tfivil Appeals at El Paso, citing numerous authorities, among which is Kerr v. Blair, supra, states: “We do not regard it,” referring to the issue, “as imposing the burden of proof upon either party.” Writ of error refused.

In Rosenthal Dry Goods Co. v. Hillebrandt (Tex. Civ. App.) 299 S. W. 665, 667, the trial court submitted the issue of unavoidable accident in the following language: “Do you find from a preponderance of the evidence in this case that the collision of two vehicles in this case was the result of an unavoidable accident?” This issue was answered in the negative. The Court of Civil Appeals of Beaumont held: “This charge was error, in that it put the burden of proof upon appellant. The burden to show that the accident was caused by appellant’s negligence, and not as a result of an unavoidable accident, rested upon appellee.”

In the same case, reported in 7 S.W.(2d) 521, 523, the Commission of Appeals, in an opinion approved by the Supreme Court, says:

“The Court of Civil Appeals held that this charge was error, in that it put the burden of proof upon appellant, citing Railway Co. v. Washington, 94 Tex. 510, 63 S. W. 534, but further held that the error was not reversible because the issue was not in the case. Our examination of the evidence convinces ns that the issue was raised and, moreover, having been actually submitted without objections by either party, neither party can raise the question there is no evidence to authorize the submission. G. T. & W. R. v. Dickey, 108 Tex. 126, 187 S. W. 184; Gonzales v. Flores (Tex. Civ. App.) 200 S. W. 851; Texas, etc., Co. v. Barton (Tex. Civ. App.) 213 S. W. 689.
“We agree with the conclusion of the Court of Civil Appeals that the charge was erroneous in form and subject to the objections timely made by the defendant below. It was indispensable to the plaintiff’s case, and the burden was upon her to that extent, to prove that her injuries resulted from the alleged negligence of the defendant. It was not necessary that the defendant plead specially that the injuries were the result of an unavoidable accident. This was put in issue by the general denial and imposed upon the plaintiff the necessity of proving that the happening was not an unavoidable accident. This necessarily was a part of her case. While this requires the proving of a negative, nevertheless it is in keeping with sound reasoning.”

The issue objected to in the instant case reads: “Do you find from a preponderance of the evidence that the accident in question was avoidable?”

It is immaterial to a disposition of this appeal whether a charge which “instructs the jury to determine issues from the preponderance of the evidence” “does not place the burden of proof upon either party,” as announced in Kerr v. Blair and Moore v. Orgain, supra, or whether an issue so worded “put the burden of proof upon appellant,” as is held in Rosenthal Dry Goods Co. v. Hillebrandt, supra, by the Court of Civil Appeals and the Supreme Court, because the burden in this case was upon appellees to show that the collision was not 'the “result of an unavoidable accident” and a failure to place the burden on either party was a failure to place the burden on appellees and was erroneous, and, if the issue so worded placed the burden on appellant, it was likewise erroneous because the issue of unavoidable accident was raised by the general denial “and imposed upon the plaintiff the necessity of proving that the happening was not an unavoidable accident. This necessarily was a part of her ease,” and the burden was upon appellees to so show.

The court nowhere in his charge instructed ■the jury on the burden of proof, but only directed them to find from a preponderance of the evidence. No contention is made that the evidence in the case failed to raise the issue of unavoidable accident;

In addition to the objection and exception to tbe issue as submitted, tbe appellant prepared and tendered to tbe court an issue intended to correct tbe issue as submitted by tbe court, but tbe issue so tendered was refused.

For additional authorities, see Gammage v. Gamer Co. (Tex. Com. App.) 213 S. W. 930; Humble Pipe Line Co. v. Kincaid et al. (Tex. Civ. App.) 19 S.W.(2d) 148; Montrief & Montrief v. Bragg et al. (Tex. Civ. App.) 2 S.W.(2d) 276.

Tbe judgment is reversed, and tbe cause remanded.


author: BUCK, J.

text:
    REITER-FOSTER OIL CORPORATION v. BRADLEY.
    No. 12459.
    Court of Civil Appeals of Texas. Fort Worth.
    April 25, 1931.
    Rehearing Denied May 30, 1931.
    Luther Hoffman and H. J. Bruce, both of Wichita Falls, and N. A. Gibson, of Tulsa, Okl., for appellant.
    Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellee,
   BUCK, J.

G. H. Bradley sued the Reiter-Foster Oil Corporation on June 20, 1928, and for cause of action pleaded that on June 1,1927, the defendant, acting by and through its duly authorized agent, employed plaintiff to work for the defendant company for a period of one year at an agreed salary of $6,000 per annum, payable' in 24 installments of $250 each, • on the 1st and 15th of each calendar month. That on August 15, 1927, the defendant company discharged the plaintiff from its employment, without just cause, wherefore plaintiff sued for his damages.

The defendant filed an answer consisting of a general demurrer and a general denial, and specially pleaded that the plaintiff had violated and breached his said agreement and contract to perform the duties of his position satisfactorily, capably, and efficiently, and that he had failed to devote his entire time and attention ,to defendant’s business; that he neglected and failed to acquaint and familiarize himself and keep himself informed of the physical conditions and needs of the oil properties under his charge ;v that he neglected, failed, and refused to give the defendant proper, accurate, and correct reports as to the condition of such properties and business, etc.

Defendant further pleaded that, if the said contract of employment should be found to be valid and enforceable in favor of plaintiff against defendant for the remainder of such contract year, plaintiff is not entitled to recover from defendant the amount prayed for in his petition, for the reason that from and after the discharge of plaintiff it was his legal duty and obligation to use all due and reasonable efforts and diligence, and in good faith to secure other employment during the remainder of such contract year, and that defendant was legally entitled to credit on any claim asserted by plaintiff 'for whatever sum or sums plaintiff did earn during the rest of the contract year, or could have earned or received as salary during the remainder of such contract year.

■Defendant in this suit further pleaded that on August 13, 1927, in the justice court of Throckmorton county, in a suit then pending between the Reiter-Foster Oil Corporation and G. H. Bradley, the defendant in the justice court pleaded this contract of employment which he, in this suit, says has been breached, as a defense against the suit for forcible entry and detainer. That the justice court overruled said plea and rendered judgment for the plaintiff in that suit and the defendant in this suit. Wherefore the defendant in this suit pleaded the justice court judgment as res adjudicata of the main issue presented in this suit.

To the defendant’s answer, the plaintiff filed a rather lengthy rejoinder, consisting of a general demurrer and a general denial and various exceptions, some of which may be good.

In a second supplemental petition, the plaintiff denied that the matters and things pleaded in defendant’s amended original answer were res adjudicata of the cause of action asserted in plaintiff’s original petition, and further pleaded that from the judgment in the justice court for plaintiff in that suit, the defendant in this suit, the plaintiff in this suit gave bond and notice of appeal to the county court, and that long prior to the time the case was called for trial in the county court the defendant had vacated and voluntarily relinquished unto the plaintiff the possession of the premises in controversy, and on January 28, 1928, when the cause came for trial, his counsel stated to the court that he had vacated the premises and there was nothing between the parties, and that the court rendered judgment against the defendant in that suit for only the costs of suit, but did not render judgment for the possession of the premises. The county judgment was not pleaded by the defendant here as res adjudicata of the sums involved in this suit.

This case was tried on April 30, 1930, and the court submitted the cause to the jury on three special issues, which, together with their answers are hereinafter set out:

“1. Did the plaintiff, without justifiable cause, fail to carry out the instruction of his employer regarding the installation of by passes? Answer: No.
“2. Did the plaintiff, without justifiable cause, fail to carry out the instructions of his employer regarding the making and furnishing of reports as to the sands, wells and production of the employer ? Answer: No.
“3. Did the plaintiff, without justifiable cause, fail to carry out the instructions of his employer regarding the changing of the pump strokes? Answer: No.”

The court rendered judgment for plaintiff and against defendant for $3,450, together with costs, and from this judgment the defendant has appealed to this court.

We do not think that the plea of res ad-judicata interposed by the defendant below was good. The defendant introduced in evidence the judgment of the justice court, and plaintiff below introduced in evidence the judgment of the county court, which latter judgment recited that the defendant’s attorney stated that he would no longer deny the action of the Reiter-Foster Corporation, and no longer desired to contend for and contest the plaintiff’s complaint for forcible entry and detainer. It was therefore decreed that plaintiff recover of defendant the cost in this behalf expended, and that a writ of restitution of the premises described in plaintiff’s complaint of forcible entry and detainer need not issue since said defendant had surrendered said premises to plaintiff.

It has been decided many times that a justice court judgment from which an appeal has been taken to the county court has no longer any force and effect as a judgment. That such judgment is wholly nullified by the perfection of the appeal. As said by Justice Stay ton in the ease of Moore v. Jordan, 65 Tex. 395:

“An appeal from that judgment [speaking of justice court], by any party against whom it was rendered, annulled it. * * *
“The constitution provides that, in all appeals from justice’s court, there shall be a trial de novo. An appeal from a judgment rendered in a justice’s court does not merely suspend its execution until the determination of the cause in the appellate court, ⅜ * * but its effect is to annul the judgment. On such appeals, the appellate court does not affirm or reverse the judgment of the justice’s court, but tries the case, de novo, on its merits, and renders such judgment as ought to be rendered.”

See the case of Lasater v. Streetman, 154 S. W. 657, by Justice Dunklin of this court, and Harter v. Curry, 101 Tex. 187, 105 S. W. 988, by the Supreme Court on certified questions. Therefore we overrule the propositions involving the question of res adjudicata.

Appellant in this court complains of the use of the expression “without justifiable cause” in the three issues submitted, because “as thus drawn the same are on the weight of the evidence.” The defendant did not object to the use of said term before the submission of the issues to the jury, nor did he request that the expression be defined. No definition of this phrase was tendered to the trial court, the only objection that the appellant made was: “We reserve an objection "to special issue No. 1 on the weight of the evidence, includes the term ‘without justifiable cause.’ We reserve the same objection to special issues Nos. 2 and 3.” The objection is certainly, indefinite, and it is difficult to understand what the pleader meant. Certainly it cannot he construed as an objection that a definition of the phrase was not given. It has been held in Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570, that the inclusion of a technical word or phrase in a charge without a definition thereof is such an affirmative error as can be reached by an objection thereto on such ground without the necessity of tendering a proper definition. But the objection must specifically point out the omission. Certainly the failure to give a definition is not fundamental error, to be raised for the first time on appeal. If appellant desired such phrase defined, it should have tendered a definition thereof or should have specifically told the court that he had included a phrase which should be defined. We overrule this proposition.

Proposition 5 reads: “This being a suit for damages for the breach of an employment contract, no judgment could be rendered by the court in the absence of a finding by the jury on the amount of such damage.”

If the defendant below desired a finding as to the amount of damages plaintiff had suffered, it could have submitted such issue for the jury. The evidence was practically undisputed as to the execution of the contract, and the amount of salary to be paid, and the amount of compensation paid by defendant, and the amount of salary still due.

The evidence in this case amply supports the implied finding of the court that the damages suffered by plaintiff below amounted to $3,450.

For the reasons stated, the judgment below is affirmed.


author: BLAIR, J.

text:
    STRIBLING et al. v. AMERICAN SURETY CO. OF NEW YORK.
    No. 7616.
    Court of Civil Appeals of Texas. Austin.
    July 8, 1931.
    Rehearing Denied July 25, 1931.
    James Cornell and R. G. Hughes, both of San Angelo, for appellants.
    Geo. E. Shelley, of Austin, for appellee.
   BLAIR, J.

This appeal is from orders overruling the pleas of privilege in statutory form of appellants, J. C. Stribling and W. W. Moss, to be sued in Llano county, where they reside. Appellee sued appellants in Travis county upon their written indemnity agreement, which appellee alleged in the affidavit controverting the pleas of privilege to be performable in Travis county; and on the hearing thereof venue of the suit was sustained in Travis county under subdivision 5 of article 1995 (Rev. St.), which provides that: “If a person has contracted in writing to perform an obligation in a particular county, suit may be brought * * ⅜ in such county” to enforce the obligation.

Appellee executed as surety a depository bond in behalf of the First State Bank of Cherokee, Tox., payable to the state treasurer in Travis county, Tex., to secure the repayment of the state funds deposited with the bank. Appellants did not sign the bond; but, in consideration of the execution of the bond by appellee as surety, appellants executed the indemnity contract, agreeing (a) to “perform all the conditions of said bond,” and (b) to “indemnify and save the surety harmless from and against * * ⅜ liability” thereon.

As surety on the depository bond appellee was compelled to pay the state treasurer the sum of $10,259.72, and it then filed this suit to recover that amount from appellants upon their indemnity agreement. The court construed the indemnity obligation, to be performable in Travis county, because it referred to and obligated the makers to “perform all conditions of the said bond” given to secure the repayment of' the state funds deposited with the bank to the state treasurer in Travis county, and indemnitors thereby in legal ef-feet agreed in writing to perform the indemnity obligation in Travis county. Manifestly' this construction of the indemnity agreement is incorrect as applied to the character of suit brought by appellee. Appellee's suit was not upon any obligation of the bond which appellants may have agreed by their indemnity contract to perform, but its suit was solely upon the separate and distinct indemnity agreement to indemnify appellee for the amount it had theretofore paid on the bond. The sole obligation of the bond was to secure the repayment of state funds deposited with the bank, which obligation appellee performed when it paid the, amount due thereon.

It is true that the indemnity agreement obligated appellants to “perform all the conditions of the bond” on demand of appellee; but appellee did not demand of appellants performance of nor did it sue them upon any bond obligation which they may have impliedly agreed to perform in Travis county, because such bond obligation was performable there. In fact, appellee could not have sued appellants upon any bond obligation, because it had prior to filing this suit performed the sole obligation of the bond by paying the amount due thereon to the state treasurer. Its suit was therefore upon the indemnity agreement, which does not designate any particular county in which the obligation to “indemnify” appellee for the amount it paid on the bond is performable.

Where a written contract only provides for performance in the county of suit of an obligation not involved in the suit, venue cannot be sustained under subdivision 5 of article 1995, to enforce an obligation of the contract not made performable in the county of the suit. Williams v. Doering (Tex. Civ. App.) 28 S.W.(2d) 893.

The rule is also settled that in order to sustain venue of a suit under subdivision 5 of article 1995, the written contract sued upon must alone be looked to in determining whether it is performable in the county of the suit; and, if it does not expressly or by necessary implication provide for the performance of the obligation sued upon in the county of the suit, venue is improperly sustained. Allison & Sons v. Hamic (Tex. Com. App.) 260 S. W. 1037; Cohen v. Munson, 59 Tex. 237; Barker v. Foster, 3 Willson, Civ. Cas. Ct. App. § 305; Employers’ Casualty Co. v. Cameron & Co. (Tex. Civ. App.) 288 S. W. 584, 585; Kramer v. Lilley, 55 Tex. Civ. App. 339, 118 S. W. 735; Little v. Woodbridge, 1 White & W. Civ. Cas. Ct. App. § 152; Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125; Lyon v. Gray (Tex. Civ. App.) 265 S. W. 1094; Mann, Mauck & Stephens v. Clapp & Brown, 1 White & W. Civ. Cas. Ct. App. § 503; Scarborough & Davis v. Culp (Tex. Civ. App.) 276 S. W. 743; Russell v. Green (Tex. Civ. App.) 214 S. W. 448; Williams v. Doering (Tex. Civ. App.) 28 S.W.(2d) 893; Wrenn v. Brooks (Tex. Civ. App.) 257 S. W. 299.

The indemnity agreement does not in express terms provide for performance of the obligation to indemnify appellee for any amount it paid on the bond in Travis county, and there is no fact or circumstance which would indicate that the parties intended to impliedly agree that such obligation would be performable in Travis county, and venue of the suit was improperly sustained in Travis county.

The orders appealed from are set aside, and the cause remanded, with instructions to transfer same in accordance with the pleas of privilege filed.

Reversed and remanded, with instructions.


author: BAUGH, J.

text:
    SPARKS et al. v. WEST.
    No. 7626.
    Court of Civil Appeals of Texas. Austin.
    July 15, 1931.
    Critz & Woodward, of Coleman, for appellants.
    Baker & Baker, of Coleman, for appellee.
   BAUGH, J.

Appeal is from an order overruling the pleas of privilege of John Sparks and Arthur P. Stephens to be sued in Tarrant and Dallas counties, respectively, where they resided. Appellee sued them for $200 for labor alleged to have been performed in Coleman county by him for them under oral contract. Neither in his petition nor in his controverting plea did he allege the precinct in which such labor was performed. The suit was filed in precinct No. 1 of Coleman county. Appel-lee asserted venue in said precinct No. 1 under section 4 of article 2390, R. S. 1925, which provides: “Suits upon a contract in writing promising performance at any particular place, may be brought in the county and precinct in which such contract was to be performed, provided that in all suits to recover for labor actually performed, suit may be .brought and maintained where such labor is performed, whether the contract for same be oral or in writing.”

The trial court concluded as a matter of law that under said statute appellee was authorized to bring his suit in any precinct in Coleman county; that is, that the word “where,” used in the proviso added to the general statute by amendment in 1917, refers to and includes the county in which such labor was performed, and that venue in such case is not restricted to the precinct in such county, as in case of written contracts. In this the trial court clearly erred. No more reason exists for giving a county wide venue in a cause of action' of which the justice court has original jurisdiction in a suit for labor performed than for doing so on a contract in writing, or on any other cause of action. Nor do we think the Legislature so intended in its amendment. On the contrary, we think the word “where” necessarily confines the “place” of such suit to the precinct in which the labor was performed, where venue is predicated upon that ground, just as does the provision concerning contracts in writing.

No statement of facts accompanies the record, but the trial court’s findings of fact show that the labor was performed in precinct No. 3 of Coleman county; that there was no qualified justice of the peace in that precinct; and that precinct No. 1, where said suit was brought, was the nearest justice of the peace to said precinct No. 3. Appellee contends, therefore, under article 2393, R. S. 1925, ap-pellee was entitled to bring this suit in said precinct No. 1.

Such grounds, however, were not alleged by appellee in his petition, nor in his controverting affidavit, as a basis for venue in said precinct No. 1. Under the general well-established rule that, as against a defendant’s plea of privilege, plaintiff must both allege and prove specific grounds on which to sustain venue where the suit is brought, we must reverse the trial court’s judgment, and appellants contend that it is the duty of this count to order the transfer of the suit in accordance with said pleas of privilege. We do not, however, sustain this contention.

The general rule is now well established that, upon a reversal of the trial court’s judgment, if it seems probable that the ends of justice may best be served by remanding the case, instead of rendering same, even though amendment of appellee’s pleadings may be necessary to secure proper relief upon another trial, the appellate court should remand rather than render same. Associated Oil Co. v. Hart (Tex. Com. App.) 277 S. W. 1043, and authorities there cited; Stolaroff v. Campbell (Tex. Civ. App.) 18 S.W.(2d) 838, 841; Brooks Const. Co. v. Bank (Tex. Civ. App.) 39 S.W.(2d) 83; 3 Tex. Jur. 1231. And this rule has been applied to orders overruling pleas of privilege. Smith v. Rogers (Tex. Civ. App.) 34 S.W.(2d) 312, and cases cited.

While the trial court erred in overruling said pleas on the grounds asserted and under the pleadings presented, we think the interests of justice would be best subserved by reversing and remanding the case. If it appears upon another hearing that venue was properly laid in Coleman county, a trial upon the merits should be had there. Otherwise the pleas of privilege should be sustained. McKay v. King-Collie Co. (Tex. Civ. App.) 228 S. W. 991.

Reversed and remanded.


text:
    OSAGE OIL CORPORATION et al. v. McGUIRE.

    No. 12459.
    Court of Civil Appeals of Texas. Fort Worth.
    April 4, 1931.
    Rehearing Denied May 2, 1931.

      Oantey, Hanger & McMahon, of Port Worth, and Vinson, Elkins, Sweeten & Weems, of Houston, for appellants.
    McParlane & McParlane, of Graham, for appellee.

      Writ of error granted.

   BUCK, J.

This is a suit by H. B. McGuire, of Young county, against the Osage Oil Corporation, an Oklahoma corporation doing business in Texas, and the Vacuum Oil Company, a New York Corporation doing business in Texas. Plaintiff sued the corporations for an alleged unreasonable and unwarranted delay in delivering to plaintiff assignments of certain lease acreage out of the Mrs. D. C. Clayton tract, out of the James Matthews survey, being 80 acres out of the 320-acre Clayton tract, located in Jack county. Plaintiff alleged that on or about June 15, 1929, by agreement with the two defendants, it was provided that the plaintiff should drill a well on the described land to a depth of 3,500 feet, unless oil or gas was found in paying quantities at a less depth, and that plaintiff should receive as compensation for the drilling of said well assignments from the defendants conveying full title to the east 80 acres, running full length north and south of said Clayton tract, and extending west a sufficient distance to contain the 80 acres. It is shown in the record that these assignments were placed in escrow with the Pirst National Bank, of Jacksboro, Tex., and that the well was drilled to the depth of 2,892 feet on August 25, 1929, at which depth the driller encountered gas producing sand, and that gas flowed out of the well to the amount of 1,800,000 cubic feet per day.. That at the time said gas was discovered, on August 25, 1929, Mr. Jenks, a scout for the Osage Oil Corporation, and Mr. Wood-burn, a scout for the Vacuum Oil Company, were present. That a test of the amount of gas flow was made, and it was shown that a flow of 1,800,000 cubic feet was produced.

The plaintiff sought recovery for the rental value of his drilling rig and tools from September 2, 1929, to October 15, 1929; and for the wages of a watchman, claimed to be necessary, for the same time, and the alleged reasonable market value for McGuire’s time for the same period.

The defendants filed their answers, consisting of a general demurrer, and certain special exceptions, which will be noticed, if appears to be necessary, further in this opinion.

The court submitted the cause upon special issues, which issues, together with the answers thereto, are hereinafter set out:

“Special Issue No. 1: Do you find from a preponderance of the testimony that gas was found in paying quantities in the well drilled by H. B. McGuire on the Clayton land, being the well in question in this suit on August 25, 1929. Answer: Yes.
“Special Issue No. 2: Prom a preponderance of the evidence, when was each of the defendants notified that the well in controversy vyas making gas at the rate of approximately 1,500,000 cubic feet of gas per day, or more? Answer: August 25,1929.”

The court instructed the jury with reference to this answer as follows:

“In this connection you are instructed that notice to any agent of the defendants is notice to the respective defendant.
“Special Issue No. 3: Did the defendants ■herein, within a reasonable time after they had received notice that the well in question was making gas at the rate of approximately 1,500,000 cubic feet of gas or more per day, consent for the Pirst National Bank of Jaeks-boro, Texas, to deliver the assignments in question to said McGuire? Answer: No..
“Special Issue No. 4: Was it reasonably necessary that plaintiff, McGuire, leave his drilling rig and tools at the well in question from the time of the discovery of gas and after September 2, 1929, until said well was delivered to the Brazos River Gas Company? Answer: Yes.
“Special Issue No. 5: State and find how ■ many days the plaintiff’s said drilling rig and tools and equipment remained idle at said well? Answer: 43 Days.
“Special Issue No. 6: What was the reasonable rental value per day, if any, of plaintiff’s said drilling tools and equipment during the time they were idle, if they were. Answer: $18.00.
“Special Issue No. 7: Was it reasonably necessary for the plaintiff to keep and maintain a watchman at said well in question on and after gas was found in said well until the well was delivered to the Brazos River Gas Company? Answer: Yes.
“Special Issue No. 8: How many days, if any, was it necessary for the plaintiff to maintain said watchman at said well? Answer: 43 days.
“Special Issue No. 9: What was the reasonable amount per day necessary for the plaintiff to pay said watchman? Answer: $5.00.
“Special Issue No. 10: Did the plaintiff, McGuire, suffer any loss of time from and after September 2nd, 1929, until the well in question was delivered to the Brazos River Gas Company? Answer: Yes.
“Special Issue No. 11: How many days did he suffer the loss of said time? Answer: 43 days.
“Special Issue No. 12: What was the reasonable value per day of plaintiff’s time during said period? Answer: $8.00.
“Special Issue No. 13: Find and state what date, if any, the plaintiff gave the defendants notice that he had sold said well in question to the Brazos River Gas Company? Answer: No date found.”

Upon this verdict so returned, the court entered judgment for the plaintiff and against the defendants, jointly and severally, for $1,-333, from which judgment the defendants have appealed.

Opinion.

It is shown that on August 29, 1929, plaintiff made a contract with the Brazos River Gas Company to convey to said company the 80 acres, which the defendants had agreed to assign to plaintiff. This contract, in part, provides:

“While the abstract is being furnished and title being approved, second party shall have the right to take over said gas well on said lease as of this day, and may, at its option, drill same deeper and put same in condition for gas production. Second party is to pay all labor and furnish all additional pipe for the purpose of drilling said well deeper and all material in equipping same as a gas well and it is understood that the derrick, rig, casing on the ground, and in the well, at this date, and all tools belong to and are the property of first party, but same are to be furnished by first party to second party in drilling said well deeper and in equipping same, as a gas well without charge. After said well is drilled deeper and equipped, the derrick, tools and all casing, except that furnished by second party, are the property of first party and may be removed from the premises by the first party and the casing may be pulled by first party and that which is not pulled shall forever remain the property of first party and first party shall have the right to pull the same at any time after said well has been abandoned or ceases to produce gas.
“Both first and second party shall have full and complete right of ingress and egress and joint possession of said premises for the purpose of drilling for the respective minerals owned by them from time to time and in case first party drills a well which produces gas only, second party shall have the option of paying for the actual cost of . drilling and equipping said well and take same over as a gas well. On the other hand, should second party drill a well which proves to be an oil well, then first party shall have the option of taking over the same as an oil well by paying the second party the actual cost of drilling said well, but if in either event should such well prove to be a producer of both oil and gas, then the parties hereto agree to make such adjustment as may be equitable and right in the premises at the time.”

The evidence further shows that the Brazos River Gas Company, drilled the well 8 more feet on October 15, 1929, the date upon which any damages suffered by plaintiff, and for which he pleaded, ceased. The evidence further shows that, when plaintiff notified the defendants that he had completed a gas well, he told them that he intended to drill the well deeper. The defendants answered the letters to them, and asked that he drill the well deeper and to notify them when it was drilled deeper. It was drilled only 7 or 8 feet deeper, making the hole 2,900 feet deep. It seems to us that, by the terms of the contract with the Brazos River Gas Company, it was the duty of plaintiff, and he was bound, to leave his drilling rig and equipment at the location of the well until the gas company should exercise its option to drill the well deeper. We do not see how he could properly charge the defendants for the use of his tools and equipment, when, under the contract with the Brazos River Gas Company, he was required to leave his rig and drilling equipment, and tools, until the Brazos River Gas Company should exercise its option to drill the well deeper. Nor does it seem to us that he could properly charge the defendants with the reasonable cost of the watchman’s time to look after the tools and equipment, and to keep them from being stolen. Nor does it appear to us that he could charge the defendants with the reasonable value of his (the plaintiff’s) time during that period. All of these elements of damage were covered by plaintiff’s contract with the Brazos River Gas Company. Therefore, we conclude that the plaintiff below failed to sustain the elements of damage which he pleaded, and that the motion of defendants below for a peremptory instruction should have been granted.

There are a number of other questions involved in this case, not necessary for us to determine; for instance,, “what constitutes a well in paying quantities,” etc. But we think that what we have said disposes of every issue raised.

We therefore reverse the judgment of the court below and here render judgment for the defendants.