Harvey v. Bain, 2449-8000.
Citation | 168 S.W.2d 234 |
Decision Date | 10 February 1943 |
Docket Number | No. 2449-8000.,2449-8000. |
Parties | HARVEY v. BAIN. |
Court | Supreme Court of Texas |
Action by R. N. Bain for himself and 59 other persons against J. H. Harvey to recover a certain sum of money. From a judgment overruling the defendant's plea of privilege to be sued in the county of his residence, the defendant appealed to the Court of Civil Appeals. The Court of Civil Appeals certifies questions to the Supreme Court.
Controlling questions answered.
Keys, Holt & Head, of Corpus Christi, for appellant.
L. W. Shepperd and Bradley & Bradley, all of Groesbeck, Seale & Seale, of Centerville, and Bennett & Bennett, of Normangee, for appellees.
HICKMAN, Commissioner.
This case is before us on certificate from the Court of Civil Appeals for the Tenth District at Waco. The appeal to that court was from an order overruling a plea of privilege. Suit was brought in the district court of Leon County by appellee Bain for himself and 59 other persons against appellant Harvey for a sum in excess of $8,000. The appellant timely filed his plea of privilege to be sued in Nueces County, where he resided, which plea was controverted by appellee. The only ground relied upon in the controverting plea material to the questions certified was that the defendant had contracted in writing to pay the consideration for certain mineral leases in Leon County; that the suit was upon such written contract, and that venue was therefore properly laid in Leon County under Subdivision 5 of Article 1995, Acts of 1935, 44th Legislature, Chapter 213, Vernon's Ann Civ.St. art. 1995. Under the terms of that subdivision of the statute the suit was maintainable in Leon County if appellant had contracted in writing to pay for the leases in that county.
In support of the allegation in his controverting affidavit that appellant contracted in writing to pay the consideration for the leases in Centerville, Leon County, he introduced the following instrument attached to each of the leases, the name of the lessor and the number of acres covered by his lease being stated in each case:
The certificate refers to the tentative opinion of the court accompanying same for a statement of the facts, and the questions certified have reference to the correctness of the views expressed in the tentative opinion of the court based upon such stated facts. They are as follows:
The defendant drew the escrow agreement, and instructed his agent to have each lessor execute an identical agreement to be attached to his lease. The defendant solicited and procured the consent of the Centerville State Bank to act as escrow agent. The leases and escrow agreements listed in plaintiff's pleadings were executed by the landowners at the solicitation of defendant's duly authorized agent; they were accepted by such agent, and by him were placed in escrow in said bank. None of the escrow agreements were signed by defendant. Each of same was signed by the landowner whose lease was being taken by the defendant's agents. There is no evidence that defendant notified any of the landowners who signed such leases that he would not accept such leases and pay therefor; there is evidence that defendant stated to one of the landowners who was willing to execute a lease if he was paid off on July 15th, that he would like to have the lease and would like to pay off on the 15th, but August 16th was the time stipulated for payment.
The questions certified are as follows:
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