Dina Pak Corp. v. May Aluminum, Inc.

• Decision Date: 29 June 1967
• Docket Number: No. 289,289
• Citation: 417 S.W.2d 419
• Parties: DINA PAK CORPORATION et al., Appellants, v. MAY ALUMINUM, INC., Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 419

417 S.W.2d 419

DINA PAK CORPORATION et al., Appellants, v.MAY ALUMINUM, INC., Appellee.

No. 289

Court of Civil Appeals of Texas Corpus Christi.

June 29, 1967.

Rehearing Denied July 20, 1967.

Allen Melton, Dallas, for appellants.

Quinnan H. Hodges of Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.

OPINION

GREEN, Chief Justice.

PlaintiffMay Aluminum, Inc., filed suit against defendantsDina Pak Corporation and R. Drumwright Keys in the district court of Wharton County.From an order overruling their respective pleas to be sued in the county of their residence, to-wit, Dallas County, both defendants have appealed to this court.Subdivisions 5, 23, and 29a, Art. 1995, Vernon's Ann.Tex.St. are involved.

Plaintiff in its petition alleged that on the dates set out in itemized statements attached thereto as Exhibit A, consisting of 73 sheets or invoices, plaintiff at the special instance and request of defendants sold and delivered to defendants as buyers in the regular course of business during the year 1964 the goods, wares, merchandise, equipment, labor and services shown on said exhibit; that defendants became bound to pay plaintiff in accordance with invoices duly accepted by them the amount of $6,122.19, which debt is due and unpaid.It further alleged that the cause of action or a part thereof arose in Wharton County, the orders for the merchandise having been received and accepted in such county, and the goods, wares and merchandise having been manufactured and/or processed and the labor and services performed by plaintiff there.Additionally as to defendant Keys, plaintiff alleged that he had personally, both orally and in writing, guaranteed payment to plaintiff of all sums due or to become due it by defendant corporation on this account, and that plaintiff relied on such guaranties in furnishing defendants the above goods and services.Such petition was properly verified as provided by Rule 185, T.R.C.P .Plaintiff's petition was made a part of its controverting and amended controverting affidavits, and the allegations of the petition were there repeated.

SUBDIVISION 5, ART. 1995

Subdivision 5 reads:

'5.Contract in Writing.--If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.'

Under this provision, the essential obligation for venue purposes involving a written contract is that of payment, and where no place for payment is specified in the written contract no exception to the general rule of domicile is established.59 Tex.Jur.2d, Venue, § 42, pp. 435 et seq.;Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120;Magness v. Herider, Tex.Civ.App., 392 S.W.2d 383, n.w.h.We have carefully checked the entire statement of facts, including the invoices attached to the petition and the purchase orders made exhibits to the controverting affidavit, all of which were in evidence, and have found no written agreement whereby either defendant contracted in writing to perform any obligation, including the essential obligation of making payments, in any place in Wharton County.It is shown that the parties did business on written agreements.Defendants ordered merchandise, sometimes by purchase order, sometimes by telephone subsequently confirmed by purchase order.Upon shipment of merchandise ordered, plaintiff would invoice Dina Pak Corporation; Doyle May testified that plaintiff never billed anything until the goods were shipped.Neither the purchase orders, signed by Dina Pak and accepted by plaintiff, nor the invoices executed by plaintiff and accepted by defendants, provided that payments should be made in any place in Wharton County .Had they stipulated for payment to be made in El Campo, where plaintiff's plant was located this court would take judicial notice that El Campo, though not the county seat, is in Wharton County.Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521;Buckaloo Trucking Company v. Johnson, Tex.Civ.App., 409 S.W.2d 911.

In addition to testimony of oral guaranties of payment by defendant Keys of the account sued on, plaintiff placed in evidence two written contracts of guaranty signed by Keys.The first, executed in 1957, did not say anything as to where the payments should be made.This agreement was superseded by a subsequent contract of guaranty executed by Keys to plaintiffJuly 22, 1963, which expressly provided that any payments which may become due plaintiff by Keys by virtue of the guaranty shall be paid to plaintiff at Houston, Texas.There was no provision in the contracts of guaranty that Keys was obligated to make any payments in Wharton County.

We hold that there is no evidence in the record to support an implied finding of venue under Subdivision 5, Art. 1995.

SUBDIVISION 23, Art. 1995

This subdivision as applicable here provides that 'Suits against a private corporation, association, or joint stock company may be brought * * * in the county in which the cause of action or part thereof arose; * * *.'It applies to venue of the suit as to the corporate defendant only, and requires proof (1) that such defendant is a private corporation, (2) that plaintiff has a cause of action against such defendant, and (3) that said cause of action or a part thereof arose in Wharton County.Danaho Refining Company v. Dietz, Tex.Civ.App., 378 S.W.2d 412.

The evidence is conclusive on both sides that defendantDina Pak Corporation is a private corporation.Plaintiff's suit was based upon an open account for goods and merchandise founded on business dealings between the parties and for labor and materials furnished, and was supported by the affidavit of plaintiff in the form set out in Rule 185, T.R.C.P. Defendants, although filing, subject to their pleas of privilege, a sworn general denial, did not file the verified denial of the justness or truth of plaintiff's claim provided by Rule 185, T.R.C.P. Plaintiff's petition with the affidavit and exhibits was in evidence .In the absence of the sworn denial required in such instances by Rules 185and93, the sworn account shall be taken as evidence of the existence of plaintiff's cause of action, and defendant shall not be permitted to deny the claim or any item therein.Haney v. Henry, Tex.Civ.App., 307 S.W.2d 649.

A plea of privilege does not constitute a verified denial of any allegation of plaintiff's petition required to be denied under oath unless specifically alleged in such plea.Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758.A general denial in which defendants deny the allegations contained in Plaintiff's Original Petition and demand strict proof thereof, even though sworn to, does not comply with the requirements of Rule 185, and is insufficient to put in issue the justness or truth of plaintiff's sworn account.

Thus, without any further proof of the facts concerning plaintiff's claims, the verified account as alleged and shown by plaintiff's pleadings was sufficient to show the existence of a cause of action.

In making proof of its cause of action, however, plaintiff did not rely entirely on Rule 185.Much evidence was introduced which showed that defendant corporation did order from plaintiff, and that plaintiff did make and furnish such defendant(plaintiff's pleadings and evidence also included Keys jointly with his corporation as its customer) the materials and...