Klein v. Sibley

• Citation: 203 S.W.2d 239
• Decision Date: 14 May 1947
• Docket Number: No. 11697.,11697.
• Parties: KLEIN et al. v. SIBLEY.
• Court: Court of Appeals of Texas

Page 239

203 S.W.2d 239

KLEIN et al. v. SIBLEY.

No. 11697.

Court of Civil Appeals of Texas. San Antonio.

May 14, 1947.

Rehearing Denied June 11, 1947.

Appeal from District Court, Bexar County, Seventy-Third District; C. K. Quin, Judge.

Suit by A. T. Sibley against O. B. Klein and others for a judgment establishing plaintiff's interest in realty purchased under a joint adventure contract and for appointment of a receiver, or in the alternative for damages for breach of the contract. From an order overruling their pleas of privilege, defendants O. B. Klein and F. N. Pierce appeal.

Order reversed and judgment rendered granting such pleas and directing transfer of cause.

Emmett Shelton and Shelton & Shelton, all of Austin, and Tynan, Taylor, Calhoun & Robinson, of San Antonio, for appellants.

Nat L. Hardy and Carl Wright Johnson, both of San Antonio, for appellee.

MURRAY, Justice.

This is an appeal from an order overruling pleas of privilege by O. B. Klein and F. N. Pierce. The suit was instituted by A. T. Sibley against O. B. Klein, F. N. Pierce and W. P. Thompson in the 73d District Court of Bexar County, Texas. Klein resides in Travis County, Pierce, in Williamson County, and Thompson, in Bexar County.

Plaintiff alleged, among other things, that he and defendants entered into an oral contract and agreement to purchase, improve, subdivide and sell two tracts of land adjacent to the City of San Antonio in Bexar County, Texas; one containing 150 and the other 119 acres of land. After plaintiff had transferred options to purchase these two tracts of land to Klein and Pierce, and after the 150-acre tract had actually been purchased, defendants repudiated the joint adventure contract and refused to let plaintiff proceed to subdivide and sell this land, to his damage in the sum of $107,000.

Plaintiff further alleged that after the purchase price of the land and cost of operations had been realized out of the sale of lots and repaid to Klein and Pierce, then the unsold land was to be divided among the parties according to their respective interests. Therefore, plaintiff contended that he had a present interest in the land, and prayed for a receiver to take charge of the affairs of the joint enterprise, for judgment establishing his interest in the real property, fully described in his petition, according to his proportionate share in the joint enterprise and, in the alternative, that he have judgment against defendants jointly and severally for his damages.

Defendants Klein and Pierce filed pleas of privilege, in statutory form, to be sued in the counties of their residence.

Plaintiff controverted these pleas, asserting venue in Bexar County under subdivisions 4 and 14 of Art. 1995, Vernon's Ann.Civ.Stats., commonly called the venue statute.

The trial court after hearing evidence overruled the pleas of privilege and Klein and Pierce have prosecuted this appeal.

The rule is well settled that when a plea of privilege is filed in due and legal form it is prima facie proof of the right of a defendant to be sued in the county of his residence unless plaintiff is able to show that an exception exists to the general rule which gives a citizen the right to be sued in the county of his residence. Rule 86, Texas Rules Civil Procedure.

Appellee makes the following three counter points, to-wit:

"1. This suit is properly brought in Bexar County, Texas, because the appellee shows under his allegations and proof that he has a present interest in the lands in Bexar County described in his petition, because of the joint enterprise agreement with the appellants.

"2. This suit is properly brought in Bexar County because appellee shows under his allegations and proof that he has a present interest in the lands in Bexar County described in his petition, said interest being held by the appellants in trust.

"3. This suit is properly brought in Bexar County because under the appellee's allegations and proof he has a bona fide cause of action for damages against the appellants and the defendant, Thompson, jointly, and that the defendant Thompson resides in Bexar County, Texas."

We prefer to discuss appellee's counter points rather than appellants' points because, as above stated, the burden of showing venue in Bexar County is upon appellee and a more logical discussion can be had in this manner.

Appellee's first and second counter propositions present the contention that the venue of this suit can be maintained in Bexar County because, under the provisions of Subdivision 14 of Article 1995, it is a suit for an interest in land located in Bexar County.

It is a well-settled rule that in determining the nature or character of a suit a court must look to the allegations of the petition. Gilbert v. Gilbert, Tex.Civ. App., 195 S.W.2d 930, affirmed Tex.Sup., 195 S.W.2d 936.

Appellants and appellee in discussing this matter have brought forward both the allegations and the proof, but we are definitely of the opinion that we can consider only the allegations. This being true, we here set forth the material allegations of plaintiff's petition, as follow:

"2. That shortly prior to the 24th day of April, 1946, the plaintiff, A. T. Sibley, and the defendants, O. B. Klein, F. N. Pierce and W. P. Thompson, orally entered into a contract and agreement to purchase, improve, subdivide and sell the two tracts of land hereinafter fully described, one containing 150 acres of land, and the other containing 119 acres, said land being adjacent to the City of San Antonio and situated in Bexar County, Texas. That by said contract and agreement, said parties undertook a Joint Adventure or Joint Enterprise for the purpose of the purchase, sale, improvement and subdivision of said land, which said Joint Adventure or Joint Enterprise was to continue until said land had been purchased, improved, subdivided and enough of the same sold to repay the cost of the purchase price and the improvements which were to be made in carrying out subdivision and sale of said property as lots or small tracts. That after a sufficient amount had been sold to repay said capital investment, the remaining lots and tracts were to be divided between the parties according to the proportions hereinafter alleged, or, if sold before division, the net profits were to be divided in the proportions hereinafter set out. That according to said Joint Adventure agreement, the plaintiff was to contribute to said enterprise his labor and services in preparing said tracts of land for sale as a subdivision of lots and small tracts and in procuring purchasers for said lots and tracts. That the said defendants, O. B. Klein and F. N. Pierce were to advance the capital necessary to complete the purchase of said two tracts of land and to pay for the improvements necessary to prepare the same for sale as a subdivision, and that the defendant, W. P. Thompson, was to contribute certain services to said Joint Adventure.

"That according to said agreement, said Joint Adventure was to be owned by the parties hereto in the following interests or proportions, subject to the right of the said defendants, O. B. Klein and F. N. Pierce to be repaid all capital advances made by them, the said Klein and Pierce were to jointly own 64- 1/6 % interest in said Enterprise as it applied to the 150 acre tract; that the defendant, Thompson was to own a 5% interest as applied to said 150 acre tract, and that the plaintiff was to own the remaining 30- 5/6 % interest, and that the defendants, Klein and Pierce were to jointly own 50% interest as applied to the 119 acre tract; the defendant Thompson was to own 5% interest in said 119 acre tract, and the plaintiff the remaining 45% interest in said 119 acre tract.

"3. That at the time plaintiff and defendants entered into the Joint Adventure agreement heretofore alleged, the plaintiff, A. T. Sibley, was the beneficial owner and had at his disposal, options or executory purchase contracts on said two tracts of land. That said purchase contracts or options were in the name of B. F. Ruby as buyer, but were actually the property and under the control of plaintiff. That the said written contracts of sale were both dated March 12, 1946, one being for 3 tracts of land each containing 50 acres * * *. The other contract of sale covering 119 acres of land. * * *

"4. That thereafter, and on or about April 24, 1946, the plaintiff procured a transfer and assignment from the said B. F. Ruby to F. N. Pierce and O. B. Klein of said option and purchase agreements on said two tracts of land described in the preceding paragraph. That the said O. B. Klein and F. N. Pierce have paid the cash payment required by said contract to complete the purchase of said 150 acre tract and that on or about the 19th day of August, 1946, the deed from the former owners of said 150 acre tract conveying said property to the said Pierce and Klein was duly delivered and the legal title to said 150 acre tract has been conveyed to the said Pierce and Klein, but that said tract is in fact owned by the parties hereto in accordance with the proportions hereinabove set out, as a part of said Joint Adventure herein alleged.

"That the purchase contract and option to said 119 acre tract has been extended and it is now a valid and subsisting option and contract to purchase and it is held in the names of O. B. Klein and F. N. Pierce, but in fact belongs to said Joint Enterprise and to the parties hereto in the proportions alleged above.

"5. That from and after the formation of said Joint Adventure by the agreement and contract heretofore alleged herein, plaintiff has devoted his time and attention to the promotion of said subdivision and prepared plats and maps of the same; has entered into various extended negotiations concerning the dedication and improvement of streets and roads in said subdivision and has procured and has under contract a large number of purchasers who are ready, able and willing to buy the...