Scott v. Cassidy Southwestern Commission Co.

• Decision Date: 03 May 1922
• Docket Number: (No. 6751.)
• Citation: 240 S.W. 1041
• Parties: SCOTT v. CASSIDY SOUTHWESTERN COMMISSION CO.
• Court: Texas Court of Appeals

240 S.W. 1041

SCOTT v. CASSIDY SOUTHWESTERN COMMISSION CO.

(No. 6751.)

Court of Civil Appeals of Texas. San Antonio.

May 3, 1922.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Suit by the Cassidy Southwestern Commission Company against S. L. Scott and

others, and from the overruling of a plea of privilege of the defendant Scott to be sued in Archer county, his domicile, he appeals. Judgment affirmed.

Miller & Miller, of Fort Worth, for appellant.

Bryan, Stone & Wade and B. L. Agerton, all of Fort Worth, for appellee.

SMITH, J.

S. B. Cook and Dan S. Bellows, a partnership, executed a note to the Cassidy Southwestern Commission Company, together with a chattel mortgage upon 123 cattle in Young county, to secure the note. Shortly afterwards, Cook, for the partnership, made a trade with S. L. Scott, by the terms of which the latter agreed to pasture and feed the cattle on his ranch in Archer county. In this trade the value of the cattle was fixed at $95 each on 100 head, and $90 each on 23 head, it being agreed as compensation for pasturing them that Scott was to receive half of the proceeds from the ultimate sale of the cattle after deducting the agreed value and the cost of extra feed from the sale price. Scott then moved the cattle from Young to Archer county, and later on shipped them to the commission company for sale. The latter, without knowledge of the identity of the cattle, sold them, and forwarded the proceeds to Scott, who paid the same over to Cook, after deducting his share of the net profits as agreed upon. Cook and Bellows paid a part of the commission company's note, leaving a balance due thereon of $4,277.07. The Company sued Cook, Bellows and Scott in the district court of Tarrant county for this balance, and the latter filed a plea of privilege to be sued in Archer county, his domicile. This plea was controverted, but upon a hearing the court overruled it, and Scott has appealed from this order.

The commission company is domiciled in Tarrant county, in which county the note sued on was payable; Cook resides in Clay county; Bellows in Tarrant; and Scott in Archer. It is contended by appellee that his relation to Cook and Bellows made Scott a partner with them, and placed him in the attitude of assuming to pay the note sued on, and that because he converted the cattle and destroyed the security for the note he became liable therefor, and that accordingly he is a proper party defendant, and suable in Tarrant county, where the note was payable and Bellows, one of the defendants, resides. This statement presents all the issues involved in the appeal.

We do not think that under the facts as stated Scott at any time was a partner with Cook and Bellows. He had no interest whatever in the cattle at the time they were mortgaged, and the note was executed, and if he had subsequently purchased a definite interest in them and entered into definite partnership relations with Cook and Bellows, we doubt if such cause would have resulted in his assumption of the payment of the note in the absence of a written obligation to that effect,...