Barnwell v. Fox & Jacobs Const. Co.

• Decision Date: 04 June 1971
• Docket Number: No. 17593,17593
• Parties: Hugh A. BARNWELL et al., Appellants, v. FOX & JACOBS CONSTRUCTION COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 199

469 S.W.2d 199

Hugh A. BARNWELL et al., Appellants, v. FOX & JACOBS CONSTRUCTION COMPANY, Appellee.

No. 17593.

Court of Civil Appeals of Texas Dallas.

June 4, 1971.

J. Ray Riley, DeLange, Hudspeth, Pitman & Katz, Houston, for appellants.

Robert E. Wood, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.

CLAUDE WILLIAMS, Chief Justice.

Venue action. Fox & Jacobs Construction Company brought this action in the District Court of Dallas County against Mills & Beavers Construction Company, Inc., Hugh A. Barnwell and wife Avis R . Barnwell, Jefferson County Savings & Loan Association, and First Mortgage Company of Texas, Inc. In the first count of the petition plaintiff alleged that on or about April 15, 1969 it agreed to furnish to Mills & Beavers Construction Company a quantity of building materials designed for the construction of a house on property located in Harris County. It was alleged that Mills & Beavers accepted the materials and used same as improvements on the real property and promised to pay plaintiff the sum of $9,718. Exhibit A, attached to the petition, was alleged to contain 'a true and correct account of the materials furnished and the prices agreed to be paid therefor.' Exhibit A is in two parts, each being a printed invoice from Fox & Jacobs to Mills & Beavers and describing certain building materials. Each invoice recites 'Payable in Dallas County, Dallas, Texas.' Each invoice contains thereon the written name: 'J. Dale.' Also attached to the petition are sixty-four other invoices, none of them signed by 'J. Dale' or anyone else.

The petition then alleges that on June 16, 1969 the plaintiff filed with the County Clerk of Harris County an affidavit and claim for materials furnished which established a statutory and constitutional lien upon the real property involved. A copy of the affidavit and claim was attached and marked Exhibit B. It was then alleged that Jefferson County Savings & Loan Association and First Mortgage Company of Texas, Inc. were asserting a lien against the property involved but that plaintiff was entitled to have a materialmen's lien foreclosed as being superior to the liens asserted by the defendants.

Hugh A. Barnwell and wife, and First Mortgage Company of Texas, Inc. filed their pleas of privilege seeking to have the suit transferred to Harris County, the county of their residence. Jefferson County Savings & Loan Association filed its plea of privilege seeking, under the provisions of subdivision 12 of Art. 1995, Vernon's Ann.Civ.St. of Texas, to have the suit transferred to Harris County, the county where the property subject to attempted foreclosure was located. Mills & Beavers Construction Company, Inc. filed its plea to have the suit transferred to Galveston County, the county of its residence.

Fox & Jacobs filed its controverting plea to the plea of privilege filed by Mills & Beavers in which it was alleged that venue of the suit against said defendant is maintainable in Dallas County because said defendant had contracted in writing to perform an obligation in Dallas County within the meaning of subdivision 5 of Art. 1995, V.A.C.S.

Fox & Jacobs also filed its controvering plea to the pleas of privilege filed by the other defendants in which it was contended that since venue of the suit was maintainable in Dallas County as to Mills & Beavers under subdivision 5 of Art. 1995, V.A.C.S., venue against the other defendants was also maintainable in Dallas County because they were necessary parties within the meaning of subdivision 29a of Art. 1995, V.A.C.S.

The trial court entered an order overruling all the pleas of privilege. Mr. and Mrs. Barnwell, Jefferson County Savings & Loan Association, and First Mortgage Company of Texas, Inc., appeal. Mills & Beavers Construction Company, Inc. did not perfect an appeal .

The material facts are largely without dispute and may be briefly summarized. On March 31, 1969 Friendswood Development Company conveyed Lot 7, Block 11, Oak Brook West, Section 2, a subdivision of Harris County, Texas, to Mills & Beavers, said deed being duly recorded in the Deed Records of Harris County, Texas on May 19, 1969 . By deed of trust dated April 10, 1969, Mills & Beavers conveyed the property described to a trustee to secure the payment of an indebtedness evidenced by a promissory note in the principal amount of $29,000, payable to the order of First Mortgage Company of Texas, Inc., said deed of trust being recorded on April 16, 1969. By deed dated June 11, 1969, Mills & Beavers conveyed the property described to Hugh A. Barnwell, and Avis R. Barnwell, said deed being recorded on July 18, 1969. By deed of trust dated June 11, 1969 Barnwell and wife conveyed the property to a trustee to secure the payment of an indebtedness evidenced by a promissory note in the principal amount of $31,500 payable to First Mortgage Company of Texas, Inc., said deed of trust being recorded on July 18, 1969. On July 18, 1969 First Mortgage Company of Texas, Inc. sold, assigned and transferred and delivered the above described promissory note to Jefferson County Savings & Loan Association, said instrument being recorded on July 18, 1969.

Fox & Jacobs Construction Company, a Texas Corporation with offices in Dallas, was engaged in the business principally of processing and delivering house packages to builders. John Valentine, marketing manager for Fox & Jacobs, testified that on April 3, 1969 he, on behalf of Fox & Jacobs, agreed to ship certain building materials to Mills & Beavers Construction Company in Harris County. He testified that the agreement was in writing. By letter dated April 3 Fox & Jacobs submitted a written offer to Mills & Beavers. This offer was accepted by letter from Mills &amp Beavers dated April 4, 1969. Valentine said that the materials were later forwarded to Mills & Beavers by trucks and delivered to the premises in Harris County. Valentine identified Exhibits 1 and 2 as being printed forms of invoices dated April 15, 1969 and April 23, 1969. These forms contain description of materials furnished Mills & Beavers in Harris County. Each form contains the statement 'Payable in Dallas County, Dallas, Texas,' and contained the written signature 'J. Dale.' He was asked: 'Mr. Valentine, do you know a Jay Dale?', to which he responded, 'No, I don't.'

Robert Wixon, Comptroller for Fox & Jacobs, testified that Exhibits 1 and 2 were standard invoices and 'this particular pink copy used as a delivery ticket and receipted by a foreman on the job .' He had no personal knowledge of the transaction but knew that the account had not been paid. Wixon identified Exhibit No. 4 which was a copy of affidavit filed with the Clerk of Harris County establishing materialmen's lien for Fox & Jacobs.

Testimony was offered by First Mortgage Company of Texas to the effect that such company had no knowledge of the materialmen's claim being asserted by Fox & Jacobs at the time it advanced money secured by its deed of trust.

Appearing in the transcript, though not admitted in evidence during the hearing, are interrogatories propounded by Fox & Jacobs to Mills & Beavers pursuant to Rule 168, Vernon's Texas Rules of Civil Procedure. These interrogatories were answered by the attorneys for Mills & Beavers, such answers reflecting that a person whose last name is 'Dale' and whose first or middle initial is 'J' was an employee of Mills & Beavers as job foreman from February 15, 1969 to August 11, 1969.

The trial court made and filed numerous findings of fact, the essential ones being: that Mills & Beavers placed an order for building materials with Fox & Jacobs which was accepted by Fox & Jacobs on April 15, 1969; that the materials were delivered to the location in Harris County by Fox & Jacobs; that two written invoices, both by their terms payable in Dallas County, Texas, were signed by J. Dale on April 25 and May 7, 1969; that J. Dale was an employee of Mills & Beavers; that Mills & Beavers failed to deny execution of the invoices and failed to deny the authority of J. Dale to execute them; that the account had not been paid; that a mechanic's lien affidavit in proper form was duly filed with the Clerk of Harris County on June 16, 1969 on behalf of Fox & Jacobs.

In its conclusions of law the trial court said: that Mills & Beavers had a written obligation, performable in Dallas County, and that venue against Mills & Beavers is maintainable in Dallas County by virtue of subdivision 5 of Art. 1995, V.A.C.S.; that Fox & Jacobs has a mechanic's lien against the property described in Harris County; that First Mortgage Company of Texas, Inc., Jefferson County Savings & Loan Association, Hugh A. Barnwell, and Avis R. Barnwell, are necessary parties to the action within the meaning of subdivision 29a of Art. 1995, V.A.C.S.

OPINION

Appellants primarily assail the judgment in ten points of error. In these points, grouped together, appellants basically contend that the court's ruling wholly depends upon proof of the propriety of venue in Dallas County against Mills & Beavers Construction Company by virtue of subdivision 5 of Art. 1995, V.A.C.S., and since it affirmatively appears from the record that appellee Fox & Jacobs wholly failed to carry its burden of establishing by probative evidence a written contract, payable in Dallas County, against Mills & Beavers, there was no basis in law for holding appellants in Dallas County.

In their second group of points appellants contend that under the record as made they are not necessary parties to the action within the meaning of subdivision 29a, of Art. 1995, V.A.C.S., and hence cannot be held in Dallas County.

Certain basic and well established rules of law governing the proper resolution of the questions presented by this appeal should now be noted.

(1) The privilege granted by law to be sued in the county of one's residence is a most valuable right which should not be taken away...