Russell & Co. v. F. W. Heitmann & Co.

• Decision Date: 11 March 1905
• Citation: 86 S.W. 75
• Parties: RUSSELL & CO. et al. v. F. W. HEITMANN & CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 75

86 S.W. 75

RUSSELL & CO. et al. v. F. W. HEITMANN & CO. et al.^*

Court of Civil Appeals of Texas.

March 11, 1905.

Appeal from District Court, Dallas County; T. F. Nash, Judge.

Action by Russell & Co., a corporation, against F. W. Heitmann & Co. and others. From a judgment for defendants, plaintiff and defendant Young appeal. Affirmed.

Burgess & Burgess and Geo. H. Plowman, for appellants. Baker & Webb, for appellees.

TALBOT, J.

Russell & Co. sued in the district court of Dallas county, Tex., F. W. Heitmann & Co., of Harris county, Tex., and J. W. Young, survivor of the firm of Young & Heintz, of Dallas county, Tex., on an account for certain machinery sold by Young & Heintz, as plaintiffs' agents, to Heitmann & Co. They alleged that they were a foreign corporation, manufacturers of machinery, and that F. A. Heitmann and Theresa Lorenzen, comprising the said firm of F. W. Heitmann & Co., resided in Harris county, Tex., and the said J. W. Young resided in Dallas county, Tex.; that Young & Heintz about September 7, 1901, were commission men engaged in selling their machinery; that Young & Heintz sold Heitmann & Co. certain machinery belonging to plaintiff at the price of $1,861.30, f. o. b. cars at Dallas (the price to cover expenses of an expert to start and regulate the machinery at El Campo, Tex.); that the machinery was shipped to El Campo, and an expert, at the expense of Young & Heintz, started and regulated it; that Young & Heintz, by agreement with the plaintiffs, were to receive a commission out of the price for which said machinery sold, of $306.80, for their services in making the sale, and have an interest in the proceeds of such sale to that amount, and that the amount coming to plaintiffs on said purchase of said machinery is $1,554.50; that it was and is the duty of Young & Heintz to collect the $1,861.30 from Heitmann & Co., and pay plaintiffs their share, $1,554.50; that Young & Heintz failed to collect, and refused to sue Heitmann & Co.; that Heitmann & Co. became liable and promised to pay Young & Heintz, for the benefit of themselves and plaintiffs, $1,861.30, and failed and refused to do so; that Heintz is dead, and J. W. Young, survivor, is made a defendant. Plaintiff prays that it have judgment for $1,861.30, with interest and costs of suit, and that, when collected, plaintiff be paid $1,554.50, and that $306.80 be paid Young & Heintz, and that the equities existing between Young, as survivor, and plaintiff, be adjusted as set out, etc. Defendant Young answered by (1) a general demurrer; and (2) a denial of all allegations, except "in so far as it shows an indebtedness on the part of F. W. Heitmann & Co. to Russell & Co. and this defendant." This answer contains no prayer. Appellees filed a plea of privilege; setting up their residence in Harris county, Tex., and their right to be sued in that county. To this plea appellants interposed a general demurrer, and a special exception to the effect that the plea did not show that the defendant J. W. Young was not a necessary and proper party defendant to the suit, and that the pleadings of appellant did show him to be such. No portion of the plea of privilege is assailed, except those allegations denying a promise to perform the contract in Dallas county, and denying the right to maintain the suit in Dallas because of the joinder of J. W. Young as defendant. It is only necessary, therefore, to set out the allegations of the plea thus assailed, which are as follows: "Nor has F. W. Heitmann & Co., F. A. Heitmann, and Theresa Lorenzen contracted in writing to perform any obligation with plaintiff, or in connection with or in reference to the subject-matter of this suit, in Dallas county, Texas. And this affiant [F. A. Heitmann] further says he nor said Theresa Lorenzen nor F. W. Heitmann & Co. at any time dealt with Young & Heintz as agents of plaintiff, or as commission men under contract with plaintiff, or in any wise with Russell & Co., nor did he nor said Theresa Lorenzen nor F. W. Heitmann & Co. purchase the machinery mentioned from said Russell & Co. or from Young & Heintz; that plaintiffs have falsely and fraudulently instituted this suit against the said Young in order to obtain jurisdiction," etc. The plea negatived the right to sue in Dallas county in all other respects, without attack by appellants. Plaintiff and defendant Young admitted that defendants Heitmann & Co. cannot be held in this suit, under exceptions 1, 2, 3, and 6 to 27, inclusive, of article 1194, Rev. St. 1895.

The general demurrer and special exceptions to the plea were overruled. The court heard the plea, and evidence thereon, and sustained it; dismissing the suit as to Heitmann & Co. Russell & Co. then dismissed the suit as to Young, stating that, without Heitmann & Co. before the court, plaintiff had no suit as against Young. Plaintiff, Russell & Co., and defendant Young both filed motions for new trials. These were overruled. Plaintiff, Russell & Co., and defendant Young both appealed, joining in the same local bond.

1. That all of the defendants to the suit, except J. W. Young, resided in Harris county, Tex., and not in Dallas county, where the action was brought, is uncontroverted. The sufficiency of appellees' plea of privilege to be sued in the county of their residence is challenged mainly on the ground that it does not negative a contract in writing performable in Dallas county, and that J. W. Young was a proper or necessary party to the suit. The allegations of the plea are set out in the statement of the nature of the case, and need not be reproduced here. We think it obvious that the plea, in the respects assailed, is amply sufficient, and the court correctly overruled appellants' exceptions thereto. The trial court heard the evidence upon the whole plea, and held that the law arising thereupon, and upon the allegations of appellants' petition making J. W. Young a party defendant, did not authorize the maintenance of the suit in Dallas county against appellees. This ruling of the court, we think, is clearly sustained by the law and facts. The purchase of the machinery by appellees was not a cash transaction. Payment therefor was not to be made on the delivery, but on December 15, 1901, some two or more months subsequent thereto. It is true, the machinery was shipped f. o. b. cars at Dallas, consigned to Heitmann & Co., appellees, at El Campo; that "f. o. b. cars" means a delivery without charge for drayage or other expenses previous to loading, and an acceptance of said machinery by appellees on board the cars at...