Ray v. W. W. Kimball Co.

• Decision Date: 16 November 1918
• Docket Number: (No. 8928.)
• Citation: 207 S.W. 351
• Parties: RAY et al. v. W. W. KIMBALL CO.
• Court: Texas Court of Appeals

207 S.W. 351

RAY et al. v. W. W. KIMBALL CO.

(No. 8928.)

Court of Civil Appeals of Texas. Ft. Worth.

November 16, 1918.

Appeal from Tarrant County Court; I. T. Valentine, Judge.

Suit by the W. W. Kimball Company against R. L. Ray and others. Pleas of privilege overruled, and certain defendants appeal. Reversed, and cause remanded, with instructions to transfer the cause to the county court of Eastland county.

Scott & Brelsford, of Eastland, for appellants.

Wiley A. Bell, of Dallas, for appellee.

BUCK, J.

W. W. Kimball Company filed suit against John W. Hawkins, the Scranton Academy, and R. L. Ray, W. E. Bradshaw, W. T. Rutherford, Mace Sprawls, Joseph Ray, and J. P. Leveridge, on a series of notes signed by Hawkins, in part payment for a piano sold by Heyer-Mills Piano Company; notes being payable in Tarrant county.

It was alleged that the notes, and the accompanying chattel mortgage to secure said notes, were executed by Hawkins, acting for himself and the Scranton Academy, and that he was authorized to execute the instruments by the other defendants, and that said other defendants ratified and adopted said contract, and that after its purchase the piano had been continuously used by said Scranton Academy, unincorporated, and that the six-named defendants, above mentioned, constituted the executive and managing board of the Academy, and they had the use and benefit of said piano. Plaintiff further alleged it was a purchaser of said notes for value, before maturity, etc.

Sprawls and Joseph Ray filed their sworn plea of privilege to be sued in Callahan county, the county of their residence, and R. L. Ray, Bradshaw, Leveridge, and Rutherford filed their sworn plea of privilege to be sued in Eastland county. In both pleas of privilege it was alleged:

"That none of the exceptions to exclusive venue in the county of one's residence mentioned in article 1830 or article 2308 of the Revised Statutes exist in said cause."

Plaintiff filed a sworn controverting plea, setting up substantially the facts relied on in the original petition to bind the six defendants and to fix the venue in Tarrant county. Defendants, except J. P. Leveridge, who was alleged to be deceased, and who was subsequently dismissed from the suit, and John W. Hawkins, who failed to answer, filed an answer containing a general demurrer, general denial, and a special denial that they authorized Hawkins to execute the notes and mortgage for them, or that they had exercised any right of ownership over the piano or that they had in any way ratified and adopted the contract made by Hawkins. This plea was not verified. Upon these pleadings, and upon the introduction of the notes and mortgage, the court entered an order and judgment overruling the pleas of privilege. The five defendants, omitting Leveridge, filing said pleas, have appealed.

The court filed findings of fact and conclusions of law. In the "Conclusions of Law" it is said:

"A. On the Demurrer.

"Plaintiff alleges that the defendants suing out their pleas of privilege authorized and directed John Hawkins to execute the instruments for and on their behalf. The allegations of the petition being taken as proven on demurrer, the defendants became parties to the written instruments sued upon, and became bound thereby as fully as if they had signed them themselves. What one does by another he does by himself. The notes and chattel mortgage are each to be taken as an entirety, and the promise to pay at Ft. Worth is an integral part of the contract, and of the same obligation as the promise to pay the principal, interest, and attorney's fees.

"Article 1830 provides that no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases: `(5) Where a person has contracted in writing to perform an obligation in any particular county in which case suit may be brought either in such county, or in the county where the defendant has his domicile.' This is taken to mean that the obligation promising payment in a particular county must, for the purpose of venue, be reduced to writing. The term `obligation' is broader than `note.' The allegations of plaintiff's controverting plea, and also of plaintiff's petition, show a contract in writing promising payment at Ft. Worth, Tex., and that the contract is the contract of the defendants as undisclosed principals.

"B. On Trial of the Issue.

"John W. Hawkins having failed to deny any of the allegations of plaintiff's plea,...