San Antonio & A. P. Ry. Co. v. Cockvill

• Decision Date: 05 February 1889
• Parties: SAN ANTONIO & A. P. RY. CO. <I>et al.</I> <I>v.</I> COCKVILL.
• Court: Texas Supreme Court

10 S.W. 702

SAN ANTONIO & A. P. RY. CO. et al.

v. COCKVILL.

Supreme Court of Texas.

February 5, 1889.

Appeal from district court, Fayette county.

Suit by M. Cockvill against the San Antonio & Aransas Pass Railway Company and M. Kennedy, contractor, to recover on certain contractor's time-checks and due-bills issued to laborers on the railroad, and held by plaintiff as assignee. There was judgment for plaintiff, and defendants appeal.

S. C. Patton, for appellants. Phelps & Lane and Brown & Dunn, for appellee.

HENRY, J.

Appellee filed his petition in the district court of Fayette county, on the 1st day of February, 1888, against the San Antonio & Aransas Pass Railway Company and M. Kennedy, alleging that the railway company was a private corporation, chartered and organized under the laws of this state, and that the defendant Kennedy was a resident of Nueces county, in the state of Texas. That during the year 1887, the railway company was engaged in constructing its road from Yoakum, in Lavaca county, through Fayette county, in the direction of the city of Waco. That Kennedy had contracted with the railway company to grade and construct its road. That in constructing the road Kennedy had employed a great number of subcontractors and laborers, and that for their labor time-checks and due-bills were issued to said laborers, which were signed, registered, and approved by the agents of Kennedy, and thereby became his promises to pay to the laborers the several sums specified in them. Copies of the time-checks and due-bills were set out in the petition, amounting in the aggregate to $3,275. That plaintiff had purchased, and was the lawful holder and owner of, said claims, etc.

Kennedy filed a plea in abatement, setting up that he resided in the county of Nueces, and not in the county of Fayette. His plea contains nothing else, and does not refer to or negative the existence of other grounds of jurisdiction.

Both defendants excepted to the petition, on the grounds: (1) That it shows that the district court of Fayette county did not have jurisdiction over either of the defendants; and (2) that it shows that certain other persons (naming them) should be joined as defendants. The persons named are the various persons whose names are signed as contractors to the time-checks and due-bills sued upon, and who are alleged in the petition to have been subcontractors. Both defendants filed a general denial.

Plaintiff moved to strike out defendant Kennedy's plea to the jurisdiction, on the ground that it failed to negative the existence of all grounds of jurisdiction. The court sustained this motion, and overruled defendant's exceptions. The cause was tried by the judge, and judgment rendered for the plaintiff against M. Kennedy for $3,569.60, and for foreclosure of laborers' liens against the railway company for $2,994.02.

The instruments described in the petition were read in evidence, and it was found that plaintiff had purchased and owned them. There was evidence showing that the time-checks and due-bills were given by subcontractors under the defendant Kennedy to laborers employed in the construction of the defendant company's railroad during the year 1887, and within the 12 months next preceding the institution of this suit. There was evidence tending to show that no work was done in Fayette county before the last of May, 1887, and that some of the time-checks were for work previous to that date, and hence for labor not performed in Fayette county. The evidence clearly shows that Murphree & Wimbish, who, as subcontractors, issued a number of the time-checks sued on, amounting to $198.75, and W. L. Carver, who was also a subcontractor, and issued such checks for over $300, did no work in Fayette county. The evidence shows that the defendant M. Kennedy was the contractor to construct the whole of said railway, and that other persons were officers and agents of the corporation, as follows: U. Lott, president; B. F. Yoakum, general manager and treasurer; A. M. French, chief clerk of construction; G. T. Porter, commissary clerk of the construction department; and J. P. Nelson, chief of the construction department.

The evidence shows that the time-checks were presented to Porter, the commissary clerk, and that he entered them in his books, indorsed them as registered, signed his name to them officially, returned them to the party presenting them to him, and charged them to the contractors who drew them.

A letter from J. P. Nelson, addressed to plaintiff, was introduced in evidence, dated 24th September, 1887, in which he said: "Contractor's time-checks, signed by Porter, are all right; nothing further to be done with them. You must have the men get them signed by Porter before disposing of them I hope we will be able to take up all of June time-checks shortly. Money is very hard to get, and our subscriptions slow in coming in."

The first two assignments of error complain of the action of the court in striking out defendant Kennedy's plea to the jurisdiction, and overruling the exceptions of both defendants raising the same question. The venue of suits of this character against railroads is prescribed and limited by the act approved 18th February, 1879, (appendix Rev. St. 5.) The third section of that act reads: "Suits by mechanics, laborers, and operatives, for their wages due by railroad companies, may be instituted and prosecuted in any county in this state where such labor was performed, or in which the cause of action or part thereof accrued, or in the county in which the principal office of such railroad...