Avery Co. v. Harrison Co.

• Decision Date: 14 July 1923
• Docket Number: (No. 663.)
• Citation: 254 S.W. 1015
• Parties: AVERY CO. OF TEXAS v. HARRISON CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

254 S.W. 1015

AVERY CO. OF TEXAS v. HARRISON CO.^*

(No. 663.)

Court of Civil Appeals of Texas. Beaumont.

July 14, 1923.

Rehearing Denied October 10, 1923.

Appeal from District Court, San Augustine County; J. T. Adams, Judge.

Action by the surviving partners of the Harrison Company against the Avery Company of Texas. Judgment for plaintiff and defendant appeals. Affirmed as modified.

Burgess, Burgess, Chrestman & Brundidge, of Dallas, for appellant.

W. T. Davis, of San Augustine, for appellee.

HIGHTOWER, C. J.

This is a suit brought by G. J. Harrison and E. F. Harrison, surviving partners of the firm of the Harrison Company, to recover damages, claimed to have been sustained in consequence of fraudulent representations and statements made to the plaintiffs touching the suitableness, efficiency, etc., of a tractor and its attachments manufactured by the defendant.

The suit was filed in the district court of San Augustine county, December 16, 1916. On January 25, 1917, defendant filed a plea of privilege, which was in full compliance with the statute on the subject at that time, claiming its domicile in Dallas county. Subject to this plea, defendant answered on the merits; its answer consisting of a general demurrer, numerous special exceptions, a general denial, and other special defensive pleas.

The plea of privilege, after so long a time, was overruled, as were also the general demurrer and all special exceptions, and the case was tried to the court, and judgment rendered against defendant for the sum of $8,011, and defendant has prosecuted this appeal.

The first assignment of error complains of the overruling of the plea of privilege. This contention is based on the claimed fact that the plaintiffs failed to file a verified plea or controverting affidavit in answer to the plea of privilege. When the suit was filed and the defendant interposed the plea of privilege, there was no necessity for the plaintiffs to file a controverting plea or affidavit, and the burden of proof, under the statute at that time, was on defendant to establish its plea of privilege by proof.

The plea of privilege was not disposed of or presented to the court at the first term after it was filed, but was passed for several terms under an agreement between the parties that it might be passed without prejudice to either party. Upon the trial, which was begun August 9, 1920, the parties in open court made the following agreement:

"The plea of privilege filed by defendant, having heretofore been passed from term to term, without prejudice to the rights of either party concerning the same, is submitted at this term of court, as if filed to this term of court. It is further agreed that plaintiffs may file their plea, controverting the said plea of privilege, at any time during the trial of this case, and before the court has finally passed upon the plea of privilege, and said plea of contest will be considered as in due order, if the said plaintiffs desire so to do."

Upon the trial the plea of privilege was taken along with the main case, and evidence was heard thereon, and on August 12, 1920, before announcing final judgment on the merits, the court overruled the plea. The defendant excepted to this ruling, and saved a bill to the action of the court, but made no objection, so far as the bill discloses, to the ruling of the court on the ground that plaintiffs had not filed a verified plea or controverting affidavit, and the bill does not show that the defendant objected to the evidence on such issue. We are of the opinion that under such circumstances, the court did not err in refusing to sustain the plea of privilege. The plea, by agreement of the parties, having been passed from term to term without prejudice to the right of either party, we think the agreement between them, as above shown, preserved and protected all the rights of plaintiffs that they had when such plea of privilege was filed, as well as it protected the right of defendant to have the plea considered at the time it was considered, which, as we have stated, was after several terms of the court had expired since the plea was filed. The defendant, by making the agreement stated above, and permitting without objection evidence pro and con on the issue, waived its right to require plaintiff to file a controverting plea, even if plaintiffs were required to do so. We are further of the opinion that defendant's plea of privilege having been filed at a time when there was no requirement that plaintiff should file a controverting plea or affidavit, the present statute on the subject, although the law at the time the case was finally disposed of, has no application. Barcus v. Case Threshing Machine Co. (Tex. Civ. App.) 209 S. W. 205.

We have discussed this point thus far on the theory that the plaintiffs did not, in fact, file a controverting plea or affidavit, but there is nothing in the record to show that this is true, other than the fact that such a controverting plea or affidavit is not in the transcript. The trial court, in its judgment in connection with the plea, recites:

"* * * And the court hearing the evidence on the issue, joined by said plea and answer, in all things overruled defendant's plea of privilege."

The bill saved by defendant to this ruling of the court does not negative the fact that a controverting plea or affidavit was filed by the plaintiffs. On the merits, we think the plea was properly overruled, because the defendant is a private corporation, and plaintiffs' cause of action against it is founded on its alleged wrongful and fraudulent acts and representations, which occurred in San Augustine county.

This suit grew out of a contract between the parties, by which the appellees purchased from appellant a tractor and its usual attachments, together with an Avery self-lift five-furrow plow, for which the plaintiffs paid to appellant $670 in cash and executed their note for $670, due October 15, 1915. The note was paid prior to the institution of this suit.

The plaintiffs brought this suit for damages against defendant, alleging that defendant, through its duly authorized agents, made fraudulent representations and statements to plaintiffs as to the quality, suitableness, and efficiency of said tractor and plows to do the work for which the plaintiffs were purchasing them, and that such false and fraudulent statements and representations were made by defendant for the purpose of inducing plaintiffs to purchase the tractor and plows with knowledge on its part of the falsity of such statements and representations, and that the plaintiffs were induced thereby to enter into the written contract between the parties under which the sale and purchase was made, that such false statements and representations were verbally made, but with the intention on the part of defendant of thereby inducing the execution of the contract by plaintiffs, and that but for such false and fraudulent statements and representations, plaintiffs would not have purchased the tractor and plows.

They further alleged that their purpose in making the purchase of the tractor and plows was to use them in the breaking of a 400-acre tract of land in San Augustine county, which they intended to plant to oats, and defendant, through its...