Southwestern Inv. Co. v. Allen

• Decision Date: 18 November 1959
• Docket Number: No. A-7269,A-7269
• Citation: 328 S.W.2d 866,160 Tex. 258
• Parties: SOUTHWESTERN INVESTMENT COMPANY, Petitioner, v. Edward C. ALLEN, Respondent.
• Court: Texas Supreme Court

Page 866

328 S.W.2d 866

160 Tex. 258

SOUTHWESTERN INVESTMENT COMPANY, Petitioner, v. Edward C. ALLEN, Respondent.

No. A-7269.

Supreme Court of Texas.

Nov. 18, 1959.

Clayton & Harris, Amarillo, for petitioner.

Stone & Stone, Amarillo, Owen H. Ellington, El Paso, for respondent.

NORVELL, Justice.

This is an exception 5 venue case. The exception reads as follows:

'If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.' Article 1995, subd. 2, Vernon's Ann.Tex.Stats.

Petitioner, Southwestern Investment Company, brought suit for an alleged unpaid balance due upon a promissory note executed by respondent, Edward C. Allen, and payable to Kemp Motor Company. This note was payable 'at the office of Southwestern Investment Company in Amarillo, Potter County, Texas,' and had been assigned by Kemp to petitioner.

The respondent Allen filed a plea of privilege to be sued in El Paso County where he resided. The trial court overruled petitioner's contention that it was entitled to maintain venue in Potter County under Article 1995, subd. 5, and sustained the respondent's plea of privilege. The Court of Civil Appeals affirmed. 322 S.W.2d 324.

It is apparent from a reading of the Court of Civil Appeals' opinion that the Court considered the issue of payment as being a 'venue fact.' In this particular, the holding of the lower appellate court conflicted with a number of decisions by this Court and other Courts of Civil Appeals. In Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810, in answer to certified questions, this Court said:

'The note was executed by the appellant. Its terms purport a valid obligation, and an undertaking by the appellant to perform that obligation in Trinity, which place is shown to be in Trinity county. By virtue of subdivision 5 of article 1995 of the statutes, these facts, of themselves, fix in that county the venue of the action on the note.'

In Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698, it was held that the single venue fact which would cast venue under exception 5 is that the defendant had contracted in writing to perform the alleged obligation in the county where suit is filed or at some definite place therein which is named in the writing. See also, Farmers' Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Rudman v. Hawkins, Tex.Civ.App., 226 S.W.2d 491; Sheffield v. Kirschmer, Tex.Civ.App., 269 S.W.2d 942; Howell v. Loftis, Tex.Civ.App., 299 S.W.2d 954.

Payment is an affirmative defense which is to be determined upon the merits. Rules 94 and 95, Texas Rules of Civil Procedure. It is not a venue fact under exception 5.

Upon oral argument the respondent candidly conceded the correctness of this proposition and this Court's jurisdiction under Article 1728, subd. 2, Vernon's Ann.Tex.Stats., State v. Wynn, Tex.Sup., 301 S.W.2d 76, but asserted by both oral and written arguments that petitioner pursued a course of conduct in connection with the collection of the note that precluded it from relying upon Potter County venue under exception 5. This...