Fair v. Mayfield Feed & Grain Co.
| Decision Date | 23 June 1947 |
| Docket Number | No. 5798.,5798. |
| Citation | 203 S.W.2d 801 |
| Parties | FAIR et al. v. MAYFIELD FEED & GRAIN CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallam County; Harry H. Schultz, Judge.
Suit by Mayfield Feed & Grain Company against F. M. Fair, doing business as Fair Brokerage Company, and another, for damages for breach of contract to deliver two carloads of wire to plaintiff. From a judgment overruling their pleas of privilege, defendants appeal.
Judgment reversed and cause remanded with instructions.
Bonney, Paxton & Wade, of Dallas, and King Fike, of Dalhart, for appellants.
Richards & Richards, of Dalhart, for appellee.
This is a venue suit in which appellee, Mayfield Feed and Grain Company, a corporation, sued appellants, F. M. Fair, doing business as the Fair Brokerage Company, a resident of Dallas County, and Morris Reingold, doing business as the Industrial Brokerage Company, a resident of Harris County, for damages alleged to have been suffered through the failure of appellants to deliver two carloads of wire to appellee and contending that appellants had contracted with appellee in writing to deliver the said wire to appellee.
Each appellant by a proper plea claimed its privilege to be sued in the county of his residence. Appellee filed a controverting affidavit seeking to maintain venue in Dallam County under the provisions of Subdivision No. 5 of Article 1995, Vernon's Annotated Civil Statutes, contending that the transactions between the parties were in writing and constituted a written contract performable in Dallam County. Appellants attacked the controverting plea by special exceptions all of which were overruled by the trial court and the hearing proceeded before the court without a jury. At the conclusion of the hearing the pleas of privilege were overruled and appellants perfected an appeal to this Court.
Appellants complain that the trial court errred in holding that the pleadings in appellee's controverting affidavit were sufficient to support its order overruling the pleas of privilege. Appellee contends that its controverting plea meets the requirements of the provisions of Rule 86, Texas Rules of Civil Procedure, the source of which rule is Article 2007, as amended, Vernon's Annotated Civil Statutes.
Rule 86 requires the pleader among other things to "file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending." Article 2007 makes the same requirement with the use of the words "fact or facts" in lieu of the word "grounds" used in Rule 86 but the meaning is the same.
There seems to have been some confusion in attempting to construe the rule governing the sufficiency of the pleadings to establish venue in such cases until the Supreme Court construed the rule in the case of Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 and again in the case of A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619. In the latter case the court first observes that the purpose of our venue statute is to give a person that has been sued the right to defend the suit in the county of his residence except under well defined exceptions. It further observes that the burden rests upon the plaintiff to clearly plead and prove that the case comes within the exception before a defendant can be deprived of the right of trial in the county of his domicile and that when a defendant has filed a plea of privilege, it shall be prima facie proof of his right to a change of venue. The court holds that in order to overcome defendant's prima facie proof of his right to a change of venue plaintiff must allege "either in the controverting affidavit or by a specific reference to and adoption of allegations in his petition, sufficient facts as venue facts upon which the alleged cause of action is sought to be maintained." The rule requires and the court holds that the controverting affidavit to a plea of privilege must be verified and the court holds that it is "necessary for the controverting plea to unmistakably allege that the party who swore to such plea made the petition a part thereof, and thereby swore to the essential facts embodied in the entire petition."
The court held in the case of Jefferies v. Dunklin, supra, that in a case such as this, [131 Tex. 289, 115 S.W. 2d 393.] It is our opinion that this case is controlled by the rule as the same is construed by the Supreme Court in the two cases hereinabove cited.
Omitting the formal parts, the pertinent parts of appellee's controverting affidavit are as follows, to wit:
In paragraph 2 of appellee's controverting plea appellee's petition is referred to but not made a part of the plea. Appellee pleads that the contract is "composed and made up of letters, telegrams, confirmations, invoices, etc., all as set forth in Plaintiff's original petition," thus claiming venue in Dallam County by reference only to such instruments but the terms of the contract or the grounds upon which appellee relies to sustain venue are not pleaded as provided for in the rule as the same has been construed by the Supreme Court.
In paragraph 3 of appellee's controverting plea appellee says, "Plaintiff specially pleads his original petition in this case as showing the nature of its cause of action and prays that said petition be made and considered a part hereof for all pertinent purposes." Under the rule as construed by the Supreme Court appellee's controverting plea must "be tested by its own allegations unaided in any way by the petition." The court likewise held that it is the duty of appellee to clearly plead his case and to make the petition a part of the controverting plea or replead the facts therein contained in the controverting plea before its contents can be considered as a part of it. It is not sufficient to plead the original petition for the purpose of "showing the nature of its cause of action" or for any other limited purpose and then pray that the "petition be made and considered a part hereof for all pertinent purposes" when appellee has not clearly made the petition a part of the plea nor adopted the allegations therein contained as a part of the plea. Appellee did not see fit to make its petition a part of the controverting plea but it prayed in effect that the court make it a part thereof and consider it.
The affidavit purporting to verify the controverting plea must be direct and unequivocal as to the facts sworn to and must include the petition or the facts therein alleged. It must be sufficiently definite that, if untrue, the affiant would be subject to prosecution for perjury. C. F. Lytle Co. v. Preston, Tex.Civ.App., 175 S.W.2d 440; American Mortg. Corporation v. Smith, Tex.Civ.App., 35 S.W.2d 1092; Uvalde Const. Co. v. Waggoner, Tex.Civ. App., 159 S.W.2d 203; 2 Tex.Jur. 360, Sec. 21.
The affiant who swore to the controverting plea swore only to "the allegations and statements contained in the foregoing controverted...
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