Eastex Poultry Co. v. Benefield

• Decision Date: 22 April 1954
• Docket Number: No. 4983,4983
• Citation: 268 S.W.2d 270
• Parties: EASTEX POULTRY CO. et al. v. BENEFIELD.
• Court: Texas Court of Appeals

Page 270

268 S.W.2d 270

EASTEX POULTRY CO. et al. v. BENEFIELD.

No. 4983.

Court of Civil Appeals of Texas, Beaumont.

April 22, 1954.

John A. Erhard, Dallas, for appellants.

McLeroy & McLeroy, Center, for appellee.

WALKER, Justice.

The appeal is from an order overruling a plea of privilege. Plaintiff, the appellee, alleged that he had sold a quantity of poultry to Eastex Poultry Company, and he brought suit against Eastex Poultry Company for the price. A plea of privilege to be sued in Dallas County was filed in the name of Eastex Poultry Company and also in the name of one Joe Fechtel. It was alleged in this plea that Eastex Poultry Company was a partnership and that Joe Fechtel was a partner in this concern, and it was alleged further that the residence of said concern and of Fechtel was in Dallas County. Plaintiff filed a controverting affidavit and made his petition a part of this pleading. It was alleged in the controverting affidavit that Eastex Poultry Company was a partnership of Joe Fechtel and A. L. Hilkemeyer operating under the name of said concern; that Hilkemeyer resided in Missouri; that plaintiff resided in the county of suit; and that the trial court had venue of Hilkemeyer under Subdivision 3 of Article 1995, R.S. 1925, Vernon's Ann.Civ.St. art. 1995, subd. 3, and had venue of Fechtel and of the partnership under Subdivision 29a of Article 1995.

The issue of venue was tried before the court without a jury and evidence was adduced in support of the contentions of the parties. The trial court's order overruling the plea of privilege impliedly found all fact issues in favor of the plaintiff, and on the evidence these implied findings established the following facts: (1) At all material times the plaintiff was a resident of the county of suit and Eastex Poultry Company operated a place of business in said county. This palce of business was a plant where chickens purchased by Eastex were prepared by said concern for sale on the public market. (2) Plaintiff as seller and Eastex Poultry Company as purchaser made a contract of purchase and sale as alleged in the petition, under which plaintiff was entitled to the relief prayed for by him; and this contract was made as a part of the business conducted by Eastex in the county of suit and was made in said county. (3) Eastex Poultry Company was a copartnership of Joe Fechtel and A. L. Hilkemeyer. (4) Fechtel resided in Dallas County and Hilkemeyer resided in Missouri. Other facts material to specific contentions are stated below.

An appeal from the order overruling the plea of privilege has been taken in the name of Eastex Poultry Company and in the name of Joe Fechtel, and said defendants have assigned five Points of Error for reversal. We shall discuss the contentions made without further reference to the Points.

Opinion

(1) Article 5924, R.S. 1925, requires all persons operating a business under an assumed name to file with the County Clerk of the county in which the business is to be conducted a certificate stating certain information, and the plaintiff put in evidence an original certificate filed in the county of suit in compliance with this statute. The trial court necessarily inferred, and under Art. 5926 was justified in inferring, that the certificate had been filed by or in behalf of the persons who made the certificate. This certificate purported to be signed by Fechtel and Hilkemeyer and it also contained a notary's certificate of acknowledgment by those persons. The statement required by the statute and also the notary's certificate of acknowledgment were dated September 1, 1952. The complete certificate was filed in the office of the County Clerk on May 13, 1953, before the contract sued on was made. As Article 5924 requires, it was stated in this certificate that the Eastex Poultry Company was a partnership and that the partners were Fechtel and Hilkemeyer; and that the post office address of Fechtel was Dallas, Texas, and the post office address of Hilkemeyer was Jefferson City, Missouri. It is contended that admission of this certificate was erroneous on the ground that execution of the certificate was not proved.

This contention is overruled. Execution of the certificate by Fechtel was proved by the witness Ruston, who identified Fechtel's signature. Article 5924 requires that the certificate of assumed name 'be executed and duly acknowledged by the persons so conducting or intending to conduct said business in the manner provided for acknowledgment of conveyance of real estate'; and under Article 3723, the notary's certificate of acknowledgment, which complied with the requirement just quoted from Article 5924, proved the execution of the certificate by both Fechtel and Hilkemeyer. See: Smith v. Dozier Construction Co., Tex.Civ.App., 66 S.W.2d 744; Hughes v. Dopson, Tex.Civ.App., 135 S.W.2d 148; Stout v. Oliveira, Tex.Civ.App., 153 S.W.2d 590; Thane v. Dallas Joint Stock Land Bank, Tex.Civ.App., 129 S.W.2d 795; Southwest Bitulithic Co. v. Martinez, 135 Tex. 347, 143 S.W.2d 116, at page 119; Norris v. Lancaster, Tex.Com.App., 280 S.W. 574.

(2) It is contended as error that plaintiff failed to prove that Hilkemeyer was a partner of Eastex Poultry Company when the plaintiff's cause of action arose. This contention is overruled. Concerning the certificate required by Article 5924, it is provided in Article 5926 that 'A copy of such certificate duly certified to by the county clerk in whose office the same was filed shall be presumptive evidence in all courts in this State of the facts therein contained'. The effect of Article 5926 is to make the original certificate of file with the clerk the real proof and to make this proof available in court by a certified copy. The original certificate put in evidence by the plaintiff was thus presumptive proof of the statements therein which Article 5924 required to be made, and thus was presumptive proof that Eastex Poultry Company was a partnership of Fechtel and Hilkemeyer. This evidence has not been rebutted. Further, Fechtel's execution of the assumed name certificate having been proved, this certificate was an admission by him of the facts stated therein, and this admission, being that a party to the suit, was substantive evidence of said facts as against him. See: McCormick & Ray's 'Texas Law of Evidence', pp. 626 and 627, Sec. 489. This is also true concerning Hilkemeyer, whom plaintiff has alleged to be a partner and whose interest in the partnership the plaintiff is attempting to subject to his claim. Such admissions, being clearly established and having been made pursuant to a positive requirement of law, are cogent evidence of the facts admitted. This evidence shows the nature and membership of the concern Eastex Poultry Company when the assumed name certificate was filed, since filing in behalf of the partnership is but a repetition of the statements made on the date of the certificate. As we have stated, this certificate was filed before plaintiff made the contract sued on. The certificate was filed on May 13, 1953. Plaintiff alleged that the contract was made on May 26th, and some of his testimony shows that the contract was made on the date alleged. There is no evidence of change in membership; and the membership of Eastex Poultry Company shown by the assumed name certificate presumptively continued to be the same at such dates later than the date when the assumed name certificate was filed as were material to the question of venue. It is held that a partnership proved presumptively continues, and even the lapse of time between the date of the certificate and the dates when the contract was made and this suit was filed was not great enough to effect the operation of this presumption. See: 32 Tex.Jur. 504, Sec. 180. See, also, Spolane v. Coy, Tex.Civ.App., 153 S.W.2d 672; Owl Taxi Service v. Saludis, Tex.Civ.App., 122 S.W.2d 225. The evidence supported the trial court's implied findings concerning the nature and membership of the concern Eastex Poultry Company. It is, therefore, unnecessary for us to consider the effect to be given the failure of defendants Eastex and Fechtel to deny the allegations concerning partnership made in...