Hurst v. Rush

• Decision Date: 29 August 1974
• Docket Number: No. 7591,7591
• Citation: 514 S.W.2d 472
• Court: Texas Court of Appeals
• Parties: Lloyd HURST and Globe Roofing & Sheet Metal, Inc., Appellants, v. Stanley V. RUSH, Appellee.

Page 472

514 S.W.2d 472

Lloyd HURST and Globe Roofing & Sheet Metal, Inc., Appellants, v.Stanley V. RUSH, Appellee.

No. 7591.

Court of Civil Appeals of Texas Beaumont.

Aug. 29, 1974.

Jess H. Hall, Jr., of Liddell, Sapp, Zivley & Brown, Houston, for appellant.

James M. Pape, Houston, for appellee.

STEPHENSON, Justice.

This is an appeal from an order overruling defendants' pleas of privilege.Trial was before the court and no findings of fact or conclusions of law were filed.

Plaintiff, Stanley Rush, filed this suit in Montgomery County, naming Matt Howard, d/b/a Scientific Roofing Company, Lloyd Hurst and Globe Roofing & Sheet Metal, Inc., (Globe) as defendants.Hurst and Globe filed pleas of privilege, each asking that the case be transferred to Harris County.Plaintiff controverted those pleas of privilege relying upon Subdivision 5 of Article 1995, Vernon's Ann.C .S. Plaintiff alleged that Howard contracted to do the roofing work on plaintiff's building in Conroe, Montgomery County, and by a contract in writing guaranteed the roofing work done.Plaintiff further alleged that both Hurst and Globe expressly assumed the obligations of said contract in writing.Plaintiff also reiled upon Subdivisions 23 and 29a to maintain venue in Montgomery County.

Subdivision 5 provides in effect that if a person contracts in writing to perform an obligation in a particular county that suit may be brought against him in that county.Even though plaintiff alleged in his controverting affidavit that Hurst and Globe assumed the obligations in writing, the uncontroverted evidence shows only an oral assumption of the written guarantee.We are, therefore, squarely faced with the question, can venue be maintained under Subdivision 5 where there is an oral assumption of a written contract?

We have not been cited, nor have we found a case directly in point .There are several Court of Civil Appealscases in which a general rule is stated; however, the factual situation did not present the question before us.In General Motors Corporation v. Brady, 477 S.W .2d 385, 388(Tex.Civ.App., Tyler, 1972, no writ), the court states that to sustain venue under Subdivision 5 that four things must be proved, the third being that the contract was entered into by the defendant or by one authorized to bind him, or was assumed or ratified by him.It is noted that the statement does not make it clear whether such assumption must be in writing.That case cites Vaquero Drilling Company v. Adcock, 453 S.W.2d 908(Tex.Civ.App., San Antonio, 1970, no writ), which cites Covington-Compton Co. v. Medina Agr. Products, 425 S.W.2d 694(Tex.Civ.App., San Antonio, 1968, no writ).However, the statement in Covington-Compton omits any reference to assumption or ratification, and cites Garcia v. Kingsville First Savings & Loan Ann'n, 415 S.W.2d 537(Tex.Civ.App., San Antonio, 1967, dismissed), which does the same.Therefore, we find the addition of 'assumption and ratification' for the first time in Vaquero, supra.In Vaquero, supra, suit was brought on a sworn account for equipment ordered by telephone, but a delivery slip was signed by persons receiving the equipment, containing a promise to pay in the county in which the suit was filed.The issues of assumption and ratification were not in that case, leaving us with the decision which we must make.

We have construed Subdivision 5 to mean that, in order to maintain venue hereunder, a defendant must assume or ratify a contract in writing.We see no reason to hold that one being sued upon a primary contract is entitled to be sued in the county of his residence unless a written contract provides otherwise, and apply a different rule to one being sued under an assumption or ratification .

Under Subdivision 23plaintiff had the burden of proving, in this case, that Globe was a corporation and that the cause of action against it or part thereof arose in Montgomery County.Hurst testified that he owned the Globe Roofing & Sheet Metal Company and that it was a Texas corporation.

The contract sued on in this case, which was admitted in evidence by the trial court, reads as follows:

'December 6, 1966

'Col. Stanley Rush

3600 Encanto

Fort Worth, Texas

ContractNo.: 15591

'Dear Col. Rush:

We have completed the roofing work set out by our invoice of this date on building located in Conroe, Texas, and we quote you our guarantee as follows:

'We guarantee this work to give waterproof service for a period of Fifteen (15) years.Should same fail to do so we will furnish the necessary labor and material to make same waterproof for this period of time.Excluded from this guarantee are 'Acts of God' such as fire, hail, freeze, tornado, hurricane or damage caused by malicious act or mechanical mutilation.We are not responsible for color failure of any product used.This guarantee becomes effective on the completion of our work providing charges in connection with the installation have been paid.'

This guarantee is not transferable without our permission.

SCIENTIFIC ROOFING COMPANY

/s/ Matt Howard

By _ _

Matt Howard,...