Faver v. Leonard, 81

• Decision Date: 15 October 1964
• Docket Number: No. 81,81
• Citation: 383 S.W.2d 201
• Parties: Don L. FAVER, Appellant, v. O. P. LEONARD et al., Appellees.
• Court: Texas Court of Appeals

Page 201

383 S.W.2d 201

Don L. FAVER, Appellant, v. O. P. LEONARD et al., Appellees.

No. 81.

Court of Civil Appeals of Texas, Tyler.

Oct. 15, 1964.

Glenn Faver, Jasper, B. R. Reeves, Palestine, for appellant.

Robert Stahala, Garrett, Hodges & Stahala, Fort Worth, R. E. Swift, Palestine, for appellees.

DUNAGAN, Chief Justice.

DESIGNATION OF THE PARTIES

The Appellant is Don L. Faver, the Plaintiff in the Trial Court. The Defendants in the Trial Court, O. P. Leonard et al., are the Appellees.

NATURE OF THE SUIT

Appellant, Don L. Faver, who resides in Palestine, Anderson County, Texas, is engaged in contract hauling of sand and gravel, brought this suit against Obie P. Leonard, Jr., Obadiah Callaway, Margery Ann Hodges and husband, Leland A. Hodges, Martha Jane Anthony and husband, James E. Anthony, and R. W. Leonard, seeking judgment for services rendered the Appellees for gravel hauled and delivered by Appellant to Appellees' ranch in Anderson County from February 18, 1963, until May 24, 1963, inclusive, aggregating the total sum of SIXTY EIGHT HUNDRED DOLLARS ($6,800.00).

Appellant, in his Third Amended Original Petition upon which he went to trial, alleged that he was

'* * * engaged in contract hauling of sand and gravel * * *. That the defendants, O. P. Leonard, Obie P. Leonard, Jr., Margery Ann Hodge Hodges and husband Leland A. Hodges, Martha Jane Anthony and husband James E. Anthony, and R. W. Leonard, as aforesaid are resident citizens of Ft. Worth, Tarrant County, Texas, and own and operate many farms and ranches in Texas, Arkansas, Missouri and New Mexico, and are the owners and operators of a farm or ranch known as the Anderson County, Ranch, on the Trinity River in Anderson County, Texas, and has at all times and places incident and pertinent to this suit retained Obadiah Callaway as their ranch foreman or manager of the Anderson County Ranch located in Anderson County, Texas, as aforesaid alleged, and the said Obadiah Callaway had the responsibility of the control, management and direction of the said Anderson County, Ranch, and, whereas because of the rains and because of the condition of the terrain, it became necessary for gravel to be spread in the lots and on certain roads located on said ranch, and the said Obadiah Callaway, pursuant to his duties and within the course and scope of his employment for his then employers, O. P. Leonard, Obie P. Leonard, Jr., Margery Ann Hodges, and husband Lelana A. Hodges, Martha Jane Anthony and husband James E. Anthony and R. W. Leonard, retained Don L. Faver, * * * to haul and place gravel on the premises of the Anderson County Ranch, in Anderson County, Texas. That on or about October 16, 1961, the defendant Obadiah Callaway, as superintendent and general manager of the Anderson County Ranch, entered into a contract or agreement with Don L. Faver whereby the said Don L. Faver agreed to and assumed the responsibility of hauling gravel to said Anderson County Ranch * * * for a period of approximately two years, and after a series of hauls of gravel were made, the said Obadiah Callaway, who was on the scene of said Ranch and inspected the hauling of said gravel and likewise supervised the spreading of said gravel and in general supervised and controlled said work, would mail to said defendants in Ft. Worth, Texas, a form of authorization for payment by the other defendant to Don L. Faver for the services rendered in the gravel hauling.

'That said gravel was hauled at the instance and request of defendant Obadiah Callaway as ranch foreman for the other defendants who were the owners of said Ranch, * * * for which he was paid the contract price therefor, to the satisfaction of all parties.

'That, * * * this relationship prevailed to the complete satisfaction and approval of all parties up until February 18, 1963, and during the interim of time from the beginning until February 18, 1963, there was no complaint registered by Obadiah Callaway and/or the other defendants. That during this interim of time the said Obadiah Challaway * * * at various intervals mailed in authorization for payments for the gravel hauled. * * * which services were rendered by Don L. Faver in keeping with and pursuant to the contract or agreement entered into with Obadiah Callaway and the other defendants, for which Obadiah Callaway in all his activities herein was acting within the course and scope of his employment for his employers, the other defendants herein, and who was under the course and supervision of the other defendants at all times and places pertinent to this suit, * * *.

'That each and all of the aforesaid hauling of gravel to the Anderson County Ranch from February 18, 1963 to May 24, 1963, was done and performed in Anderson Countyt, Texas, and was done and performed at the instance and request of Obadiah Callaway and the other defendantw, and was done and performed in a workmanlike manner * * *. That said work was done and performed under the direct supervision and direction of Obadiah Callaway * * * and and after said work was completed as per his instructions, he then mailed an authorization of purchase order to the other defendants in Ft. Worth, Texas, requesting that indebtedness of SIXTY EIGHT HUNDRED DOLLARS be in all things paid and then for the first time the other defendants failed and refused, and still fail and refuse, to pay said indebtedness of SIXTY EIGHT HUNDRED DOLLARS, though often requested to pay same.

'That on or about March 28, 1963, the plaintiff became concerned about the non-payment for his services rendered as per contract agreement, and on said date he drove out to the Anderson County Ranch or Anderson County Farm of defendants for the purpose of picking up his machinery and equipment and discontinuing further pursuit of the job, and on said occasion he saw defendant Obadiah Callaway and advised him of his intention of such discontinuation of his work, and thereupon said Obadiah Callaway insisted that he continue said gravel hauling; that they absolutely had to have additional gravel on the Ranch and that if plaintiff would continue hauling said gravel until the contract was completed, he, Obadiah Callaway, would personally pay plaintiff for his services rendered in hauling the gravel that had already been delivered and for the additional services to be rendered by plaintiff at the completion of the job, and that upon such representation by the said Obadiah Callaway that he would personally pay for said items, plaintiff continued to haul the gravel as per contract until on or about May 24, 1963, and the said Obadiah Callaway thereby became jointly obligated to pay said items, as aforesaid, and but for such misrepresentation and personal agreement on the part of defendant Obadiah Callaway to pay said items the said plaintiff would have removed his equipment and discontinued further pursuit of the job. Though often requested, defendant Obadiah Callaway and all the other defendants herein, have failed and refused to pay said items in the sum of SIXTY EIGHT HUNDRED DOLLARS, * * *.'

Plaintiff prays that upon a final hearing he have judgment against Defendants jointly and severally for the sum sued for.

Appellees filed their Pleas of Privilege seeking to have the cause of action against them transferred to Tarrant County, Texas, the place of their residence.

To summarize the pleadings, the principal action is a suit by Appellant against (1) Appellees, one or more of whom own a farm situated in Anderson County, Texas, and (2) Obadiah Callaway, the manager of the farm who resides in Anderson County, Texas. Appellant's claim is for sums allegedly due for gravel hauled to the farm. Appellees' contention is that Appellant charged for more gravel than was delivered.

After service of citation, Appellees duly and properly filed their Pleas of Privilege to be sued in Tarrant County, the county of their residence. Appellant filed a Controverting Plea alleging that the exception to the general venue rule provided by Subdivision 4, Article 1995, Vernon's Ann.Rev.Civ.St., was applicable, necessitating that he prove a cause of action against Callaway. Appellant in his original petition and his first and second amended original petitions, allege that Callaway 'guaranteed' his debt. Later, Appellant amended his petition claiming that Callaway 'personally promised' to pay the debt, but alleged no consideration for such a promise.

A hearing was had on the Pleas of Privilege, after which the Trial Court entered an order sustaining the same and transferring the cause as to Appellees to the 48th District Court of Tarrant County, from which the appeal was taken.

Appellant requested the Court to make findings of fact and conclusions of law. The Court found, in part, that

'Plaintiff is engaged in contract hauling of sand and gravel in Anderson County, Texas. Defendant Obadiah Callaway at all times material to this hearing was in the employ of the other defendants in Anderson County, Texas, as their ranch foreman or manager. As such manager and agent for the other defendants, he contracted with the plaintiff for the said plaintiff to haul gravel to their Anderson County Ranch. That under said contract plaintiff hauled gravel for these defendants over a period of approximately two years, and until on or about March 28, 1963, he being paid for all gravel hauled prior to February 18, 1963.

'On or about March 28, 1963, Plaintiff not having been paid for any gravel hauled since said February 18th, went to the Leonard Ranch to pick up his equipment and discontinue hauling gravel for defendants. On said occasion, he saw the defendant Obadiah Callaway, and advised him of his intention to quit. Obadiah Callaway at this time insisted that plaintiff continue to haul gravel to the Leonard Ranch, stating to the plaintiff that it was essential that they have this additional gravel, and that if he the plaintiff would continue hauling gravel until the contract was...