Keys v. May Aluminum, Inc.

• Decision Date: 19 June 1968
• Docket Number: No. 134,134
• Citation: 431 S.W.2d 380
• Court: Texas Court of Appeals
• Parties: R. Drumwright KEYS, Appellant, v. MAY ALUMINUM, INC., Appellee. . Houston (14th Dist.)

Page 380

431 S.W.2d 380

R. Drumwright KEYS, Appellant, v. MAY ALUMINUM, INC., Appellee.

No. 134.

Court of Civil Appeals of Texas.

Houston (14th Dist.).

June 19, 1968.

Rehearing Denied Sept. 4, 1968.

Allen Melton, Dallas, for appellant.

Pearson Grimes, Butler, Binion, Rice, Cook & Knapp, Houston, J. J. Duckett, Duckett & Duckett, Elcampo, for appellee.

SAM D. JOHNSON, Justice.

This suit was brought in the District Court of Harris County by the appellee, May Aluminum, Inc., against the appellant R. Drumwright Keys. Appellant's Plea of Privilege and Plea in Abatement were overruled and he perfects appeal to this court.

Appellee alleges that his cause of action in the instant case is based on the written guaranty agreement of the defendant, Keys, dated July 22, 1963. It is additionally, however, predicated on a prior judgment obtained in the 23rd District Court of Wharton County, Texas. The initial suit filed in Wharton County was brought by May Aluminum against two defendants, Dina Pak Corporation and R. Drumwright Keys. That suit was to establish a debt on a sworn account, alleging the purchase and delivery of goods, wares, merchandise, equipment, labor and services.

Both defendants filed pleas of privilege in the Wharton County suit to be sued in Dallas County, the county of their residence, whereupon both pleas were overruled, and appeal was taken to the 13th Court of Civil Appeals in Corpus Christi. That court, in Dina Pak Corporation v. May Aluminum, Inc., Tex.Civ.App., 417 S.W.2d 419, no writ hist., said, '* * * Plaintiff in its petition alleged that on the dates set out in itemized statements * * * plaintiff at the special instance and request of defendants sold and delivered to defendants * * * the goods, wares, merchandise, equipment, labor and services shown on said exhibit; that defendants became bound to pay plaintiff in accordance with invoices duly accepted by them the amount of $6,122.19, which debt is due and unpaid. It further alleged that the cause of action or a part thereof arose in Wharton County * * *. Additionally as to defendant Keys, plaintiff alleged that he had personally, both orally and in writing, guaranteed payment to plaintiff of all sums due or to become due it by defendant corporation on this account, and that plaintiff relied on such guaranties in furnishing defendants the above goods and services.' The court continued, 'In addition to testimony of oral guaranties of payment by defendant Keys of the account sued on, plaintiff placed in evidence two written contracts of guaranty signed by Keys. The first, executed in 1957, did not say anything as to where the payments should be made. This agreement was superseded by a subsequent contract of guaranty executed by Keys to plaintiff July 22, 1963, which expressly provided that any payments which may become due plaintiff by Keys by virtue of the guaranty shall be paid to plaintiff at Houston, Texas.'

The Corpus Christi Court then concluded, 'The fact that plaintiff alleged and testified that the merchandise was sold to Keys as well as to Dina Pak on the basis of Keys' promise to pay for them would not constitute Keys a necessary party to the suit in Wharton County. Neither would Keys' written contract guaranteeing payment up to $10,000.00 of Dina Pak's account.

'We hold that defendant Keys was not a necessary party to plaintiff's suit in Wharton County under the definition of that term given by the Supreme Court, supra, and as contemplated by subdivision 29a, Art. 1995, V.A.T.S., and that such defendant was and is entitled to his legal right of having this suit as against him transferred to his home county of Dallas.' The Court then affirmed the judgment as to Dina Pak Corporation, reversed and rendered sustaining the plea of privilege of defendant R. Drumwright Keys and ordered the case against him transferred to Dallas County, Texas. No appeal was taken from that determination and the appellate court's mandate was issued.

Thereafter, May Aluminum's suit against Dina Pak Corporation only, was tried in Wharton County and May Aluminum obtained judgment for $6,122.19 plus attorney's fees of $3,061.10, for a total of $9,183.29. The instant suit brought by May Aluminum Company in ...