General Motors Acceptance Corporation v. Lee
| Decision Date | 30 September 1938 |
| Docket Number | No. 13800.,13800. |
| Citation | 120 S.W.2d 622 |
| Parties | GENERAL MOTORS ACCEPTANCE CORPORATION v. LEE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Montague County; Earl P. Hall, Judge.
Action by George S. Lee against the General Motors Acceptance Corporation and others for damages for breach of contract. From an order overruling its plea of privilege, the named defendant appeals.
Affirmed.
Henry P. Edwards, of Dallas, for appellant.
T. H. Yarbrough, of Bowie, for appellee.
Plaintiff, George S. Lee, sued defendants, General Motors Acceptance Corporation, the Edwards Motor Company, and F. O. Edwards, who was also alleged to be the sole owner of Edwards Motor Company and the agent in Montague County of the defendant, General Motors Acceptance Corporation, seeking to recover of all the defendants damages resulting from the breach of a contract.
It will be more convenient for us to refer to plaintiff, George S. Lee, as appellee, to General Motors Acceptance Corporation as appellant, and to defendant, Edwards, by his own name.
Appellee, by his petition, charged that on about August 10, 1936, he and another purchased a truck in Montague County, Texas, from defendant, Edwards, for which he agreed to pay $960, and an additional sum of $125.80, to cover interest on deferred payments and the premium on a fire insurance policy on the truck for a period of one year. Allegations were made that Edwards, as the agent of appellant (Acceptance Corporation), had appellee to execute and deliver to him a contract, at the time the sale was consummated, by which the amount remaining unpaid after the cash payment was made, was divided into sixteen installments of $46.03 each, all payable to appellant at Dallas, Texas, and that said sales contract provided that the seller should have the right to purchase fire insurance policies on the truck, at the expense of the buyer; that in the note or sales contract appellee was required to pay the amount of premium on such policy of insurance; that although appellee had paid the premium therefor, no such policy was ever purchased by either Edwards or appellant, and that the car burned in March, 1937, within less than one year from the date of its purchase. Appellee sought to recover the amount of his loss from the defendants for having failed to carry out the contract and purchase the insurance.
Appellant filed its plea of privilege to be sued in Dallas County, the place of its domicile. The plea of privilege was timely contested by the sworn plea of appellee, in which he claimed venue of the district court of Montague County, upon the grounds (a) that appellant being a corporation, it had and maintained an agent and representative in said county, at the time the transactions were had out of which this suit grew and had maintained such agent at all times since, in the person of Edwards; (b) all of said transactions were had with said agent in Montague County and that the cause of action arose there; (c) that said Edwards sold said truck to appellee in Montague County, accepted the premiums for said fire insurance policy, remitted same to appellant, and promised personally to purchase said insurance, but failed to do so, as more fully set out in plaintiff's petition which is referred to and made a part of the controverting affidavit. The controverting affidavit does not specifically mention the exceptions under R.C.S. Art. 1995 relied upon by him for venue, but by the allegations made they are sufficiently alleged to be numbers 4 and 23 of that article.
No demurrers were urged to the sufficiency of the controverting affidavit and we consider they are specific enough to meet the requirements of the statute.
The trial court overruled the plea of privilege, from which order the General Motors Acceptance Corporation has appealed.
We think the evidence was sufficient to support the judgment relating to the corporate existence of appellant and that it had an agent in Montague County as well also that the cause of action, or a part thereof, arose in that county.
If we are right in this conclusion, the other ground urged by appellee becomes immaterial, and does not require a discussion or determination of it by us. Lakeside Irrigation Co. v. Markham Irrigation Co., 116 Tex. 65, 285 S.W. 593; De Shong Motor Freight Lines v. North Texas Coach Co., Tex.Civ.App., 108 S.W.2d 766.
Exception No. 23, under general venue statute Article 1995, reads in part as follows: "Corporations and associations.— Suits against a private corporation * * * may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation * * * has an agency or representative, or in which its principal office is situated. * * *"
It is fundamentally true that the filing of the plea of privilege entitles the defendant to have the cause transferred to the county of his domicile unless it be contested as provided in R.C.S. Art. 2007, which article reads in part: "If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending."
The controverting plea in this case alleged the corporate existence of appellant, that it had an agent and representative in the county in the person of Edwards and that all of the transactions had in connection with plaintiff's suit had taken place in Montague County, and that the cause of action or a part thereof arose in said county. These allegations may be said to be general in their nature but the petition is made a part of the controverting plea, which, when read in connection with the plea, is sufficient to specifically point out the grounds relied upon.
In the absence of a plea which specifically points out the grounds upon which venue is sought to be held where suit was instituted, it is not sufficient to substitute such a controverting plea with a reference to the petition by making it a part of, an otherwise insufficient controverting plea. We announced...
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