Burke v. Scott

• Citation: 400 S.W.2d 385
• Decision Date: 23 February 1966
• Docket Number: No. 11364,11364
• Parties: E. J. BURKE, Appellant, v. John Linn SCOTT, Appellee. . Austin
• Court: Texas Court of Appeals

Page 385

400 S.W.2d 385

E. J. BURKE, Appellant, v. John Linn SCOTT, Appellee.

No. 11364.

Court of Civil Appeals of Texas.

Austin.

Feb. 23, 1966.

Rehearing Denied March 16, 1966.

John Peace, J. B. Langham, San Antonio, for appellant.

Cofer, Cofer & Hearne, Hume Cofer, Austin, for appellee.

HUGHES, Justice.

This is a venue case in which the trial court overruled the plea of privilege of appellant, E. J. Burke, to be sued in Webb County. John Linn Scott sued appellant to recover the sum of $68,000.00, with interest. The nature of the suit, as disclosed by the pleadings, is:

Appellee is a licensed professional architect. In April 1963, appellee and appellant entered into a contract and agreement by the terms of which appellee was employed as an architect for and in connection with the construction of a nursing home in San Antonio, Texas, by and for appellant. As compensation for such services, appellant agreed to pay appellee in cash 4% Of the construction costs of the nursing home, but such fee not to exceed forty thousand dollars, and in addition appellee was to receive '20% Of the stock in the ownership corporation without further assessment' to appellee .

Appellee alleged that he had performed under the contract all services required of him which could be performed prior to actual construction of the nursing home and that while he was obligated to supervise its construction he was prevented from performing this service because appellant 'failed and refused to begin construction' and 'abandoned said project and thereby breached' the contract with appellee.

Appellee alleged that the reasonable value of the services rendered by him to appellant was $65,000.00; that he had been paid $12,000.00 in cash and appellant had executed and delivered to him a note for $2,000.00, dated December 16, 1963, payable in sixty days after date in Austin, Texas, in lieu of cash, on the contractual obligation to pay not to exceed $40,000.00 in cash.

Appellee prayed for recovery on the note, for the value of his services less the $12,000.00 cash payment and the amount of the note, for $15,000.00 attorney's fees, interest and costs.

At the venue hearing, evidence was introduced to support the above allegations. It was also proved that bids for construction of the nursing home were taken and each was in excess of $1,000,000.00, so that 4% Of such cost would have exceeded the $40,000.00 cash agreed to be paid to appellee.

Appellant has one point of error which is that the trial court erred in overruling his plea of privilege for the reason that venue of this suit is not controlled by Sub. 5 of Art. 1995, Vernon's Ann.Tex.Civ.St.

Appellant prays that this suit be transferred in its entirety to Webb County or, in the alternative, that all of the suit except the declaration on the promissory note be transferred to Webb County.

Appellant's right to have the entire suit transferred to Webb County is based upon his contention that the suit on the note was but an incident of the main suit to enforce appellee's other rights under the contract. Appellant cites the following authorities to sustain this contention: Biggers v. Evans, Tex.Civ.App., 8 S.W.2d 557, Austin, n.w.h.; McKinney v. Moon, Tex.Civ.App., 173 S.W.2d 217, Eastland, n.w.h.; Southwestern Peanut Growers Association v. Kendrick, Tex.Civ.App., 183 S.W.2d 1019, Eastland, writ dismissed; Ammann v. The Daniel Oil Company, Tex.Civ.App., 220 S.W.2d 181, Austin, n.w.h.; Timlin v. Cloud, Tex.Civ.App., 229 S.W.2d 402, Austin, n.w.h.; Slagle v. Clark, Tex.Civ.App., 237 S.W.2d 430, Amarillo, n.w.h., and Seale v. Langston, Tex.Civ.App., 259 S.W.2d 639, Beaumont.

We will discuss these authorities in reverse order.

Langston is a suit brought in Hardin County to recover damages caused by drilling an oil well in Hardin County under a written contract to pay such damages but not fixing the place of payment. Even though the damages could have been sustained only in Hardin County, the court held defendant's plea of privilege should have been sustained.

Slagle was a suit to recover for an alleged shortage in a land sale. The suit was brought in Dallam County where the land lay. The Court held that defendant's plea of privilege should have been sustained because there was no contract in writing that such damages were payable in Dallam County.

Timlin was a suit brought in Bexar County by the purchaser against the seller to compel specific performance of a contract to sell an oil and gas lease land in Scurry County. It was held that defendant's plea of privilege should have been sustained notwithstanding the contract provided that seller should deliver the abstracts of title to buyer in Bexar County, the Court holding that failure to perform acts which are incidental to performance of the principal obligation are not determinative of venue. The suit in Timlin was not to compel delivery of abstracts. It was to compel performance of the contract to sell.

Ammann, so far as pertinent here, merely holds that it is the particular provision in a written contract which is sued upon which determines venue of the suit.

Peanut holds that it is immaterial that plaintiff's obligation is to perform services in the county of suit where defendant's obligation, the one sued on, to pay for such services is not performable in a particular county named in the contract. Defendant's plea of privilege was sustained.

Moon merely reaffirms the doctrine that it is the obligation in suit which controls venue.

Biggers, which appellant says is directly in point, is a justice court case and involves Sub. 4 of Art. 2390, R.C.S., 1925, which provided that suits to recover for labor actually performed might be brought where the labor was performed. The suit was to recover a commission for the sale of land and for labor performed in loading and packing merchandise which was given in part payment for the land . This labor was performed in the justice precinct where the suit was brought. The Court sustained defendant's plea of privilege on two grounds, (1) that the packing etc. 'was merely incidental to the sale of the land by the broker' and (2) the service which plaintiff was directed and obligated to perform was not 'labor actually performed,' the Court construing the agreement as obligating plaintiff to 'supervise' the packing etc. and not that he was obligated to perform any manual labor.

A case not cited by appellant is Auto Refinance Corporation v. Smith, Tex.Civ.App., 84 S.W.2d 296, Fort Worth, in which two corporations were sued in Wichita County to recover $40.00 being double the alleged amount of usurious interest paid them by plaintiff and for $3,750.00 damages, actual and exemplary, alleged to have been sustained as a result of the conversion of plaintiff's car by defendants in Oklahoma. Venue of the whole case was based on the conceded venue in Wichita County of the suit for usury. The Court denied this contention and sustained defendants' pleas of privilege, saying:

'It would be making mockery of the sacred right to be sued in the county of one's residence to hold that a litigant may join a cause of action, over which the justice court has exclusive jurisdiction, with one or more other causes aggregating several thousands of dollars, for the purpose of maintaining venue.'

This case, in our opinion, comes within the exceptions, to the Middlebrook doctrine, later noticed. The Court holds that there was an improper joinder of the causes of action and, from its language, indicates that venue was sought to be fixed in Wichita County through means so unfair as to reflect lack of good faith.

Some of the authorities which, in our opinion, oppose the contention of appellant that the main purpose of the suit controls the venue will now be discussed.

In Shafer v. Brashear, Tex.Civ.App., 274 S.W. 229, Judge Fly for the San Autonio Court in considering a plea of privilege filed by a defendant who had been sued in Live Oak County for a balance of $33.21 due on a $9,000.00 written obligation payable in Live Oak County, and who also, in the same suit, was sued for $271.02 for extra work, held that the plea was improperly sustained, the Court saying:

'The suit was founded on a claim partly due on a claim payable on a written promise to pay...