Ramey & Mathis v. Page

• Decision Date: 19 December 1950
• Docket Number: No. 6021,6021
• Parties: RAMEY & MATHIS, Inc. v. PAGE et al.
• Court: Texas Court of Appeals

Page 976

228 S.W.2d 976

RAMEY & MATHIS, Inc. v. PAGE et al.

No. 6021.

Court of Civil Appeals of Texas, Amarillo.

Dec. 19, 1950.

Rehearing Denied Jan. 23, 1950.

Mandamus Granted on Condition May 31, 1950.

Underwood, Wilson, Sutton, Heare & Boyce, Amarillo (H. A. Berry, Amarillo, of counsel), for appellant.

Carrington, Gowan, Johnson & Walker, Dallas, and R. C. Marshall, Borger, for appellees.

PITTS, Chief Justice.

This is a venue suit in which appellant, Ramey & Mathis, a corporation, sued D. W. Page, doing business as Page Electric Company, for damages, alleged to have been sustained by reason of the breach of a contract for the performance of which Page had indemnified appellant against loss by the execution of a surety bond furnished by Eagle Indemnity Company, a corporation, as surety, which Indemnity Company was also made a party defendant to the suit. The suit was filed in Potter County and Page filed his plea of privilege to be sued in Hutchinson County where he resided. The same was controverted by appellant and the issue of venue was heard by the trial court without a jury. The plea of privilege was sustained and appellant has perfected its appeal.

Appellant contends that the suit is one on a construction performance bond and it is seeking to hold venue in Potter County under the provisions of Subdivisions 23 and 27, Article 1995, Vernon's Annotated Civil Statutes, on the grounds that Eagle Indemnity Company is a foreign corporation with an agent and representative in Potter County where it contends a part of the cause of action arose and that D. W. Page is a necessary party to the suit under Subdivision 29a of the said Article. Appellant further contends that venue is maintainable in Potter County under Subdivisions 4 and 29a of the said Article because Eagle Indemnity Company is a corporation and surety company doing business in Potter County and is a resident of the said County under the provisions of Article 4975 and D. W. Page is a proper and necessary party to the suit. Appellee contends, in effect, that the suit is primarily against Page for alleged damages by reason of the breach of a contract and secondarily against Eagle Indemnity Company upon an indemnity bond furnished by the Indemnity Company for the security of appellant in its business transactions had with Page and that, in any event, the county in which Page resides is the county that has venue in this suit. Plaintiff will be herein referred to as appellant and defendants as Page and The Bonding Company.

The record reveals that appellant maintains its principal office in Amarillo, Potter County, Page resides at Borger, Hutchinson County and The Bonding Company was incorporated under the laws of the State of New York with its principal office in that state but has a permit to do business in Texas and maintains an agency in Amarillo, Potter County. On March 22, 1946, appellant contracted with Caney Valley Electric Cooperative Association, Incorporated, for the construction and installation by appellant of a rural electrical distribution system in Chautauqua County, Kansas, and other counties adjacent thereto. On June 28, 1947, appellant subcontracted the construction and installation of the said system to Page under a written contract on the basis of $275 per mile and setting forth the other terms upon which the agreement was made. Page agreed to indemnify appellant for his faithful performance and against costs, damages or other losses by the execution of a bond. On July 3, 1947, such a bond was executed by The Bonding Company. Thereafter on July 19, 1947, appellant and Page entered into an additional contract to do what the parties referred to as 'clean-up work', which consisted of finishing or completing a portion of work of the same nature in the State of Kansas that had been partially done by other parties and Page agreed to finish it but the terms of the contract to do the additional work were different from the terms of the previous contract in that the latter work was to be done on a unit bid basis and not on a 'per mile' basis. Appellant alleged that Page constructed 138.87 miles of the transmission lines, finished the work that had been partially done by others and performed additional work in accordance with changed orders but in the settlement between appellant and Page for all the work done, Page was indebted to appellant for a balance of $18,220.74, which sum had been due since October 5, 1948, but Page refused to pay it or any part thereof, although demands had been made upon him by appellant to pay such. For the reasons stated appellant prayed for judgment for the said sum as 'damage suffered and sustained' by appellant by reason of Page's failure to carry out and perform the terms of the contracts.

Appellee contends, in effect, that the contract for the 'clean-up work' was made subsequent to the...