MacDonald v. Trammell, 10889

• Citation: 351 S.W.2d 89
• Decision Date: 25 October 1961
• Docket Number: No. 10889,10889
• Parties: George G. MacDONALD, Appellant, v. Mary S. TRAMMELL, Appellee.
• Court: Texas Court of Appeals

Page 89

351 S.W.2d 89

George G. MacDONALD, Appellant, v. Mary S. TRAMMELL, Appellee.

No. 10889.

Court of Civil Appeals of Texas, Austin.

Oct. 25, 1961.

Rehearing Denied Nov. 15, 1961.

Small, Small & Craig, Austin, for appellant.

Carter, Stiernberg, Skaggs & Koppel, Harlingen, L. Hamilton Lowe, Austin, for appellee.

RICHARDS, Justice.

This is a plea of privilege case. George G. MacDonald, appellant, filed suit against Mary S. Trammell, appellee, a resident of Cameron County, Texas, and Ras Redwine, a resident of Travis County, Texas, for recovery of damages suffered by appellant which he alleged had resulted from the acts and conduct of the defendants in colluding and conspiring with one another with the intent to induce a breach of appellant's agreement with appellee's husband, Wm. L. Trammell (since deceased), for the payment of a commission to appellant for his services in securing defendant Ras Redwine as a purchaser for certain real estate jointly owned by Wm. L. Trammell and appellee, situated in Austin, Travis County, Texas.

Appellee Mary S. Trammell filed her plea of privilege in the Trial Court alleging Cameron County, Texas, as her county of residence, that no exception to exclusive venue in the county of residence as provided by law existed in said cause and in compliance with Rule 93(h), Texas Rules of Civil Procedure, denied under oath that she had ever signed any promise or agreement in writing or memorandum thereof to pay appellant a commission or other compensation for the sale of the property in question, nor did any other person under lawful authority from her ever sign any promise or agreement in writing or memorandum thereof. She also denied that she or her late husband Wm. L. Trammell or anyone lawfully authorized by them ever signed or exectuted any instrument in writing required by Art. 6573a, Sec. 28, Vernon's Ann.Civil Statutes, upon which appellant could base his suit for commission. Appellant filed a controverting plea adopting his original petition alleging that the cause of action alleged therein came within the venue sections of subdivisions 4 and 7, Art. 1995, V.A.C.S. Upon a hearing the Trial Court sustained appellee's plea of privilege, held the cause of action severable as to the parties defendants and transferred the severed cause as to appellee to the 103rd Judicial District Court of Cameron County, Texas, from which order this appeal is taken.

It is settled law in Texas that in order to sustain venue under subdivision 4, Art. 1995, the following venue facts must be proved by the plaintiff: (1) that one of the defendants resides in the county where the suit is pending, and (2) where suit is brought against two or more defendants it must be a suit in which the defendants are properly joined. It is therefore necessary that the petition allege a joint cause of action against the resident and nonresident drfendant or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may be joined together. But it is also essential that the plaintiff must not only plead but prove that he has in fact a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302; Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477, 479; Chandler v. Myrick, Tex.Civ.App., 275 S.W.2d 564 (no writ history).

In proving the cause of action alleged against the resident defendant the cause of action proven must be the one pleaded by the plaintiff, Stockyards National Bank v. Maples, supra, and the burden being upon the plaintiff to prove the cause of action against the resident defendant, if he fails to prove to meet such burden, the plea of privilege must be sustained. Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747, 749. It is well settled that venue as to the nonresident defendant depends not upon the proof but whether the plaintiff's petition sufficiently alleged a cause of action against the nonresident defendant. Stockyards National Bank v. Maples, supra; Snodgrass v. American Surety Company of New York, Tex.Civ.App., 156 S.W.2d 1004 (no writ history).

Appellant predicates his appeal on three points of error: the first being that the Trial Court erred in sustaining appellee's plea of privilege because the uncontradicted evidence shows that appellant's cause of action comes within the venue exception of subd. 4, Art. 1995, V.A.C.S.; second, in sustaining appellee's plea of privilege the Trial Court held in effect that appellant did not have a bona fide cause of action against the resident defendant Redwine; and third, in sustaining appellee's plea of privilege the Trial Court held in effect that appellee was not a proper party to the cause of action against the resident defendant Redwine. The first two points of error will be discussed together.

The question to be decided is whether appellant's petition stated a cause of action against the resident defendant Redwine and if so, whether appellant offered sufficient proof of such allegations at the hearing before the Trial Court. In his original petition appellant alleged that prior to March 25, 1960, Wm. L. Trammell listed certain property in Austin, Texas for sale with appellant whereby Trammell agreed to pay appellant a commission when he had secured a purchaser for the property for a consideration acceptable to Trammell, which commission was to be paid at the time the sale was made. That he thereafter secured a purchaser for the property upon terms contained in a written contract which was submitted to Trammell but Trammell altered some of the terms before executing the contract which was then submitted to the purchaser, who not being willing to the changes made by Trammell, no sale was effected.

The petition further alleged that he procured the defendant Redwine as a purchaser for the property who signed an earnest money receipt on May 3, 1960 by the terms of which Redwine agreed to purchase the property. The earnest money receipt was signed by Redwine but not by appellant or the proposed seller. Appellant communicated Redwine's offer to Wm. L. Trammell and appellee on May 6, 1960 and later about May 12, 1960 Wm. L. Trammell entered into a contract for the sale of the property to Redwine which contract was consummated on June 6, 1960 by the execution of a deed by Wm. L. Trammell and appellee to Redwine.

The cause of action asserted in appellant's petition against Redwine and appellee is that the defendants knew that appellant had induced Redwine to submit an offer for the purchase of the property and knew that the purchase offer submitted to Wm. L. Trammell signed by Thomas C. Green (which was never consummated) contained a provision for the payment of an agent's commission to appellant and that knowing that Wm. L. Trammell had agreed to pay appellant a commission when he did secure a purchaser for the property that 'said defendants colluded and conspired with one another with the design of defrauding plaintiff' so that the property would be sold to Redwine and no commission would be paid to appellant. That in furtherance of the conspiracy Wm. L. Trammell and appellee entered into an agreement with Redwine whereby the Trammells stated that they had not listed the property for sale with any real estate agency and Redwine agreed to indemnify the Trammells against any loss or expenses on account of any real estate commission claimed and adjudged to be due by reason of the sale of the property by the Trammells to Redwine.

The petition further alleged that the acts and conduct of the defendants Redwine and appellee were intended by them to cause a breach of appellant's agreement with Wm. L. Trammell and were a part of the design entered into by the defendants to defraud appellant by depriving him of his commission on the sale of the property by which acts and conduct appellant has sustained damages in the sum of $3,900, the amount of the commission the appellant was entitled to receive as agent for Wm. L. Trammell.

In order to sustain venue in Travis County under subd. 4, the burden was upon appellant to allege and prove that (1) there was an enforceable agreement or contract by Wm. L. Trammell with appellant to pay appellant a commission for the sale of the property by Wm. L. Trammell to the defendant Redwine, and (2) that Redwine and appellee had conspired and colluded together to induce Wm. L. Trammell to breach such contract. If there was no enforceable contract by Wm. L. Trammell with appellant to pay him a commission for the sale of their property in accordance with the requirements of Sec. 28, Art. 6573a, V.A.C.S., there could be no cause of action against the resident defendant Redwine for causing a breach thereof, and if no cause of action was pleaded or proved against the resident defendant Redwine for a conspiracy to defraud appellant, it follows as a matter of law that no cause of action for conspiracy existed against appellee as nonresident defendant since in order to effectuate a conspiracy there must be two or more persons acting in collusion to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, 12 Tex.Jur.2d Sec. 14, p. 336. If an act is done by one alone which would not give rise to a cause of action, such act cannot be the basis of an action if done pursuant to an agreement betwwen several persons. 12 Tex.Jur.2d Sec. 16, p. 337.

Although appellant states in his brief that this is not an action for the recovery of a commission for the sale of real estate, but is a suit for damages for conspiracy and collusion by the defendants in inducing the breach of an agreement between the appellant and Wm. L. Trammell, nevertheless the burden was upon appellant to plead and prove that an enforceable contract or agreement existed between Wm. L. Trammell and appellant for the payment of a real estate commission in order to allege a cause of...