Teague Brick & Tile Co. v. Snowden, 161

• Decision Date: 23 April 1969
• Docket Number: No. 161,161
• Citation: 440 S.W.2d 419
• Parties: TEAGUE BRICK & TILE COMPANY, Appellant, v. B. B. SNOWDEN, Individually and d/b/a S & S Building Materials Company, Appellee. . Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 419

440 S.W.2d 419

TEAGUE BRICK & TILE COMPANY, Appellant, v. B. B. SNOWDEN, Individually and d/b/a S & S Building Materials Company, Appellee.

No. 161.

Court of Civil Appeals of Texas Houston (14th Dist.).

April 23, 1969.

W. A. Keils, Jr., Teague, for appellant.

V. C. Brown, Texas City, for appellee.

BARRON, Justice.

This is a plea of privilege case.

B. B. Snowden, individually and doing business as S & S Building Materials Company, plaintiff, sued Teague Brick & Tile Company, defendant, seeking damages for breach of an alleged oral contract, and seeking damages for harassment, slander and libel, together with punitive damages. Suit was filed in the District Court of Galveston County, Texas.

Teague Brick & Tile Company filed plea of privilege, in which it admitted that it was a private corporation, and such plea was controverted by the plaintiff. After a hearing, the trial court overruled defendant's plea of privilege, and defendant has properly perfected its appeal to this Court. Defendant is domiciled at Teague, Freestone County, Texas.

Plaintiff relies on exceptions 5, 23 and 29 of Article 1995, Vernon's Ann.Civ.St., to maintain venue of this action in Galveston County, Texas. The alleged contract being oral, exception 5, of course, does not apply. The principal reliance is upon exception 23 of the venue statute, which provides that suits may be filed and venue maintained in the county in which the cause of action or part thereof arose.

Defendant contends that the trial court erred in overruling its plea of privilege, because plaintiff failed to prove any cause of action against defendant and particularly failed to show that any person involved had the authority to bind the corporation in connection with any contract with plaintiff, either oral or in writing.

The evidence shows that Snowden had sold brick for defendant prior to June, 1967, and that he had become indebted to defendant in the sum of $1,843.65. Default judgment was obtained by Teague on or about August 1, 1967, and abstracts of judgment were placed of record in Galveston and Montgomery Counties. On May 19, 1967, plaintiff, or his wife, sent Teague a check for $443.36 for merchandise. The check was returned and was marked 'insufficient.' The attorney for Teague mailed plaintiff, Snowden, three letters demanding payment of the check and in at least two of the letters the attorney stated that Teague intended to file criminal action against Snowden unless the check was promptly paid. So far as this record is concerned, the statement was communicated by the attorney and was addressed solely to B. B. Snowden. After attempts to collect the judgment and the check had failed, W. A. Keils, Jr., attorney representing Teague in the transaction, Fenton Smith, whose identity and authority were never shown, and one Adrian H. Chelette, of Harris County, a commission salesman purchasing brick from Teague and other companies, went to Snowden's home in Galveston, Texas, and had a conference with Snowden. Snowden testified that the three made an agreement with him to sell brick for Teague on a commission partly for the purpose of enabling him to pay the check and the judgment above referred to. He stated that Mr. Keils did most of the talking, and he admitted that he did not know the authority or capacity of Mr. Smith. Snowden testified that he was to be paid $4.00 per thousand for brick sold, and that he did place some orders for brick. When asked the amount of his sales, he introduced in evidence a statement which showed a total of about $284.00 and stated that he had never been paid. He further stated that Chelette and others had interfered with his business by cutting him off from his brick supply, but he never fully identified Teague or any authorized representative of the firm with any such action. Moreover, such statements appear in the record without further development, and there was no testimony showing how such action, if true, interfered with his business or affected other sources of brick.

Keils denied that he had any authority to bind Teague in any way; that he was not a stockholder, owner, manager or employee of the defendant company and merely represented Teague as an attorney, particularly in this transaction. Chelette who is not a party to this suit testified that he was not an employee of Teague and was not connected with the...