De Montel v. Brance

• Decision Date: 15 May 1941
• Docket Number: No. 11190.,11190.
• Citation: 151 S.W.2d 859
• Parties: DE MONTEL v. BRANCE.
• Court: Texas Court of Appeals

151 S.W.2d 859

DE MONTEL v. BRANCE.

No. 11190.

Court of Civil Appeals of Texas. Galveston.

May 15, 1941.

Appeal from District Court, Harris County; Norman Atkinson, Judge.

Action by J. D. Brance against Monty De Montel and others to recover amounts advanced by the plaintiff to defendant W. B. Jones. From an order overruling named defendant's plea of privilege, the named defendant appeals.

Affirmed.

White & Flock, of Tyler, for appellant.

Ernest H. Folk and Woodul, Arterbury & Folk, all of Houston, for appellee.

GRAVES, Justice.

This statement, found to be correct, has been taken from the appellee's brief:

"This was a suit by appellee, J. D. Brance, against appellant, Monty de Montel, W. B. Jones, and the Texas Highway Department, in which plaintiff alleged that plaintiff, J. D. Brance, and defendant, W. B. Jones, resided in Harris County, Texas, Monty de Montel, defendant, resided in Smith County, Texas, and the Texas Highway Department was domiciled in Travis County, Texas; that defendant, W. B Jones, borrowed Two Hundred ($200.00) Dollars from plaintiff Brance on or about May 3, 1939, agreeing to repay plaintiff within a reasonable time on demand; that thereafter during the first part of January, 1940, the defendant, W. B. Jones, represented to plaintiff that he, Jones, had a subcontract from defendant, Monty de Montel, to furnish trees and shrubs and do landscaping work upon a Texas Highway Department job in Sabine County, Texas, upon which defendant, Monty de Montel, was general contractor; that he, Jones, did not have sufficient money to finish such subcontract and that if plaintiff would furnish him sufficient money to complete such subcontract that he, Jones, would repay plaintiff out of the money he was to receive from defendant, Monty de Montel. That the plaintiff thereupon called defendant, Monty de Montel, long distance and was advised by defendant, Monty de Montel, that defendant Jones did have such a subcontract under him and that Jones would have about $1,600 or more coming to him when he finished the job; that plaintiff then told defendant, de Montel, that Jones had requested the plaintiff to advance him some money with which to complete said sub-contract and asked de Montel if he would protect him by remitting all moneys due to Jones directly to plaintiff, if he financed Jones, and that de Montel told plaintiff to go ahead and finance Jones and he, de Montel, would protect plaintiff by paying directly to plaintiff all money due or to become due from him to Jones. That relying upon such promise, the plaintiff advanced various sums to Jones, totalling $641.80 between January 4 and January 31, 1940, which was used by Jones in performing his sub-contract. That on February 3, 1940, Jones requested further advances from plaintiff and before making them, plaintiff requested and obtained from Jones a written assignment of all moneys and rights due or to become due to him under such sub-contract; that after the execution of such assignment to plaintiff on February 3, 1940, and before any further sums were advanced by plaintiff to Jones, plaintiff again called de Montel by long distance telephone, told him of the assignment and obtained assurances from de Montel that he could continue to finance Jones and he, de Montel, would remit all sums directly to plaintiff. That thereafter plaintiff advanced to defendant Jones between February 3, 1940, and February 9, 1940, the additional sum of $523.60, relying upon such assignment and de Montel's promise to recognize it and remit directly to plaintiff.

"Plaintiff further alleged that defendant Jones completed his sub-contract prior to March 13, 1940, and that there became due from de Montel under such sub-contract a sum in excess of $1,365.40, which was the amount of plaintiff's advances to Jones, but that defendant, de Montel, had failed and refused to pay plaintiff such sum or any part thereof.

"Plaintiff further alleged that by reason of such facts, plaintiff became subrogated to all rights of defendant Jones, including the right to a lien upon the funds remaining in the hands of defendant, Texas Highway Department, owing to defendant, Monty de Montel, under the provisions of Arts. 5472a, 5472b, and 6674m, of the Revised Civil Statutes of Texas; that plaintiff had taken the required steps to fix such lien upon the funds remaining in the hands of the Texas Highway Department, and was entitled to foreclose his lien upon such funds, wherefore plaintiff prayed for a judgment jointly against defendants Jones and de Montel and for foreclosure of his lien against the funds in the hands of the Texas Highway Department still unpaid to de Montel under his said road contract.

"On June 1, 1940, defendant, Monty de Montel, filed his plea of privilege to be sued in Smith County. Thereafter, within the time provided by law, on June 21, 1940, plaintiff filed his controverting affidavit, duly verified, alleging in detail all of the facts alleged in his amended petition and further that because of such facts, both defendants, Monty de Montel and W. B. Jones, were necessary and proper parties to the suit, that defendant Jones was at the time of the filing of such suit and at all times since a bona fide resident of Harris County, Texas, and that under subdivisions 4 and 29a of the venue statute (Art. 1995) venue as to both of said defendants was properly laid in Harris County, Texas.

"On August 1, 1940, defendant de Montel's plea of privilege was heard and overruled by the trial court, from which order defendant Monty de Montel has brought this case up on appeal."

In this court appellant, without citing supporting authority for any one of them, advances these propositions as the basis for a prayed-for reversal:

"I. Inasmuch as the allegation, if any, against W. B. Jones is purely and simply for money loaned to which transaction appellant was not, and never became, a party and the allegation against appellant is upon a separate and independent promise to pay certain moneys owing to Jones direct to appellee with which promise Jones was in no way connected, the judgment of the court overruling appellant's plea of privilege was error and therefore should be set aside.

"II. Inasmuch as appellee failed to anywhere allege that he advanced money to defendant, W. B. Jones, relying upon defendant, W. B. Jones, to repay the same and on the contrary specifically alleged in every instance that the money was advanced to defendant, W. B. Jones, relying upon appellant to pay certain moneys owing to W. B. Jones directly to appellee, the judgment of the court overruling appellant's plea of privilege was error and therefore should be set aside.

"III. Inasmuch as the only connection sought to be established between the two promises, if any, of defendant Jones and appellant for the purpose of making them jointly liable or properly suable jointly, was the effort to establish the promise of appellant as a guaranty for the debt of Jones, and inasmuch as said promise of appellant was unquestionably oral and in violation of the Statute of Frauds for such purpose of guaranty, the judgment of the court overruling appellant's plea of privilege was error and should be set aside."

Under the record brought up, none of these presentments can be sustained; to the contrary this opposing contention of the appellee is determined to embody the law of the case, as the facts and authorities cited thereunder make manifest:

"The trial court properly overruled defendant Monty de Montel's plea of privilege, because plaintiff alleged a good cause of action against defendant, W. B. Jones, which was so intimately connected with his cause of action against defendants, Monty de Montel and the Texas Highway Department, that the three were properly joined under subdivision 4 of the venue statute (R.S.Article 1995) in order to avoid a multiplicity of suits; the joinder of all three of such parties in one suit being absolutely necessary in order for plaintiff to obtain the...