Castro Co-op. Gin Co. v. Harrison

• Decision Date: 22 October 1954
• Docket Number: No. 3108,3108
• Citation: 272 S.W.2d 538
• Parties: CASTRO COOPERATIVE GIN COMPANY et al., Appellants, v. W. B. HARRISON et al., Appellees.
• Court: Texas Court of Appeals

Page 538

272 S.W.2d 538

CASTRO COOPERATIVE GIN COMPANY et al., Appellants, v. W. B. HARRISON et al., Appellees.

No. 3108.

Court of Civil Appeals of Texas, Eastland.

Oct. 22, 1954.

Cowsert & Bybee, Hereford, for appellants.

Watson & Watson, Stamford, for appellees.

GRISSOM, Chief Justice.

W. B. Harrison and R. W. Herren sued Castro Cooperative Gin Company, a private corporation with its office in Castro County, and its president P. B. Robb, a resident of Castro County, in Haskell County. Plaintiffs alleged the gin company intentionally, fraudulently and maliciously, in wanton disregard of plaintiffs' rights, sent Robb, its president, to plaintiffs' gin plant in Haskell County and represented (1) 'that the-gin company was interested in purchasing one steel bin and burr dropper' and that Robb, maliciously and in wanton disregard of plaintiffs' rights, took said bin and burr dropper and (2) fraudulently represented that the gin company would pay its reasonable value; and that (3) said defendants 'did not at the time of representing that the-Gen Company-would pay for said steel bin and dropper, intend and has not since intended to ever in good faith purchase said steel bin and burr dropper or pay for same, but procured possession thereof for the purpose of keeping same under an alleged right under a contract which had previously been entered into' between plaintiffs and defendants and that Robb 'fraudulently obtained possession of said steel bin and burr dropper under misrepresentations to pay for the same'; that Robb, maliciously and fraudulently, took possession of plaintiffs' bin and burr dropper, of the value of $12,000, on October 29, 1952, for the purpose of appropriating it to defendants' use and benefit, knowing plaintiffs were not aware of their fraudulent scheme to tkae them and not pay therefor; that said representations were made in Haskell County on October 29, 1952; that defendants have not paid for said property but have retained possession in disregard of plaintiffs' rights; that when plaintiffs learned of defendants' fraudulent and malicious scheme they demanded the return of the bin and burr dropper but defendants refused to return them; that said acts in so obtaining possession of the bin and burr dropper and not returning same after demand constituted a conversion, wherefore, plaintiffs sued for $1,200 actual damages and $1,000 exemplary damages. Defendants filed a plea of privilege to be sued in Castro County. Plaintiffs filed a controverting affidavit in which they adopted their petition and alleged that, within exception 9, Article 1995, Vernon's Ann.Civ.St., defendants committed a trespass in Haskell County; that they there converted said property; that defendants, by said fraudulent representations made in Haskell County obtained possession of said bin and burr dropper located there; that the gin company was a private corporation and the cause of action alleged arose in Haskell County, within the meaning of exception 23, Article 1995. That, therefore, the suit was maintainable there under exceptions 7, 9 and 23, Article 1995. Defendants' plea of privilege was overruled and they have appealed.

Appellants' points are, in substance, (1) that because appellees alleged appellants procured possession of the property for the purpose of keeping same by virtue of an alleged right under a contract previously made and introduced such contract, the contract took precedence over all allegations of the petition and venue was in Castro County where the contract was signed and performable, therefore, the court erred in overruling appellants' plea of privilege; (2) that appellees having made such allegations and introduced said contract and the contract showing on its face it was performable in Castro County, the court erred in overruling appellants' plea of privilege; (3) that the court erred in overruling the plea because appellees failed to allege and prove that appellants committed an actionable fraud in Haskell County, within the meaning of exception 7, Article 1995; (4) that the court erred in overruling appellants' plea because appellees failed to prove appellants committed a trespass, within the meaning of exception 9, Article 1995; (5) that the court erred in overruling the plea because appellees failed to prove the cause of action alleged, or any part thereof, arose in Haskell County, within the meaning of exception 23, Article 1995.

Under their first two points, appellants say the nature of appellees' cause of action disclosed by their petition was for debt. They contend, also, that appellees admitted appellants obtained possession and kept the property under an alleged right under a contract previously made and, therefore, the court was required to look to the contract alone to determine the nature of appellees' cause of action; that its nature then changed to an action to construe the contract to determine the liability of appellants thereunder. Appellants say it is evident that if the bin and dropper were included in the sale contract appellants had a right to take it and keep it and did not owe for it. Appellants contend that by introducing the contract appellees became bound by its provisions and that evidence introduced by appellees in an attempt to show that the bin and dropper were not a part of the machinery and equipment of the gin plant merely raised an issue to be determined only on the merits and such evidence could not be considered on the venue issues. Appellants further contend, under said first two points, that the allegations of fraud and conversion were merely incidental to the main cause of action for debt and construction of the contracts to determine the liability of appellants and for all said reasons the court erred in overruling appellants' plea of privilege.

It is evident, although the pleadings are indefinite, that appellees sought to maintain the suit in Haskell County because (1) appellants converted the property in Haskell County; (2) appellants acquired possession by virtue of fraudulent representations that they would pay appellees for said property when, at the time, they did not intend to pay and, said fraudulent representations having been made in Haskell County, a fraud was committed there and the suit was maintainable there under exception 7, and (3) that the gin company was a private corporation and the cause of action for conversion and fraud, or a part thereof, arose in Haskell County and the suit was maintainable there against the gin company under exception 23. As to (3), it is evident that if any cause of action alleged arose in Haskell County, or elsewhere, it was a cause of action based either on conversion or fraud mentioned in (1) and (2) above. Under the exceptions mentioned, the nature of the cause of action disclosed by the petition was not a venue fact. Appellees were required to allege and prove, by a preponderance of the evidence, as venue facts, that the property was converted or obtained by fraud by appellants in Haskell County. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; A. H. Belo Corporation v. Blanton, Tex.Civ.App., 126 S.W.2d 1015; Id., 133 Tex. 391, 129 S.W.2d 619; City of Mineral Wells v. McDonald, Chief Justice, 141 Tex. 113, 170 S.W.2d 466; Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233; Meredith v. McClendon, Chief Justice, 130 Tex. 527, 111 S.W.2d 1062; Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63.

Every material portion of the evidence relative to the venue facts was disputed. Judgment having been rendered for appellees, we are required to look alone to the testimony favorable to the presumed findings supporting the judgment and to discard all evidence to the contrary. Olds v Trylor, Tex.Civ.App., 180 S.W.2d 511, 514 (Writ Ref.); Wininger v. Ft. Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199.

Of course, if, as appellants contend, the written contract shows as a matter of law, a sale of the bin and dropper to appellants no evidence of prior verbal discussions or agreements relative thereto were admissible. However, if, as to said matters, the written contract was ambiguous such evidence was amissible. 37 Tex.Jur. 213.

The suit cannot be maintained in Haskell County under exception 9, that is, on the ground that the property was converted in Haskell County, if the owners of the bin and dropper consented to the taking thereof by appellants. 'Conversion involves a taking of property without the owner's consent; hence there can be no conversion where the owner has expressly or impliedly assented to the taking or disposition.' 42 Tex.Jur. 512. See also Terry v. Witherspoon, Tex.Civ.App., 255 S.W. 471, affirmed Tex.Com.App., 267 S.W. 973; Gulf, C. & S. F. R. Co. v. Pratt, Tex.Civ.App., 183 S.W. 103 (Writ Ref.). Likewise, appellants were not guilty of the fraud alleged and no cause of action therefor arose in Haskell County unless at the time appellants took possession they represented to appellees that they would pay therefor and then had no intention to pay. For the present purposes, we shall assume that as to whether or not there was a sale of the bin and dropper the written contract was ambiguous. Looking alone to the testimony supporting the judgment, as we are required to do, there was evidence that no sale of the bin and dropper was intended. There was evidence that because of the unusual location of the Harrison-Herren gin, with homes surrounding it, they could not burn burrs, as is customary, and, therefore, plaintiffs found it expedient to have specially built in Haskell a structure into which the cotton burrs were emptied so that a truck could drive...