Terrazas v. Carroll
| Decision Date | 11 March 1955 |
| Docket Number | No. 3131,3131 |
| Citation | 277 S.W.2d 274 |
| Parties | Simon TERRAZAS, Appellant, v. R. T. CARROLL, Appellee. |
| Court | Texas Court of Appeals |
Thomas, Thomas & Jones, Big Spring, for appellant.
J. Ray Martin, Snyder, for appellee.
This is an appeal from an order overruling a plea of privilege. R. T. Carroll brought suit in Scurry County, Texas, against Simon Terrazas, a resident of Howard County, Texas. Carroll alleged that on June 3, 1949, he, as lessor, 'entered into an instrument of lease' with Henry, G. Thornton and B. A. Harmon as lessees, thereby leasing a certain brick building in the City of Snyder for a rental of $200 per month; that thereafter Thornton and Harmon, as lessees, assigned and transferred their interests under the lease to Simon Terrazas, who assumed the lessees' obligations to plaintiff thereunder. It was further alleged that Terrazas paid rental on the property according to the terms of the lease throughout the month of December, 1953, but at all times thereafter failed to make such payments, although a term of six months of the lease was on such date unexpired. Judgment was sought against Terrazas for the $1,200 alleged to be due for the remaining six months of the lease, and for the sum of $200 alleged to be due because of damage to the building through alleged negligence, carelessness and lack of reasonably good care on the part of the said Terrazas.
Terrazas filed a plea of privilege to be sued in Howard County, the place of his domicile, and Carroll filed a controverting plea. Upon a hearing before the court, the plea of privilege was overruled. Simon Terrazas has appealed.
Appellee's controverting affidavit contains allegations that appellant became bound by a contract in writing to pay the rentals in question in Scurry County. Such allegations were not contained in his original petition. It is contended in appellant's first point that since appellee's original petition does not allege a contract in writing performable in Scurry County, venue cannot be sustained in that county under Subdivision 5 of Article 1995, Vernon's Texas Civil Statutes. We do not pass upon the question presented by this point because it has in our opinion been waived.
No exceptions were filed by appellant to appellee's pleadings nor was the question raised in the trial court in any manner pointing out the defect complained of. Rules 67 and 90 Vernon's Texas Rules of Civil Procedure; Dillingham v. Associated Employers' Lloyds, Tex.Civ.App., 233 S.W.2d 191.
In appellant's second point it is urged that the evidence does not show an instrument in writing whreby appellant agreed to pay the rentals for such building in Scurry County. Appellee relies upon two instruments which he contends when considered together, show a contract in writing by Terrazas to pay the rent in Snyder, Scurry County, Texas. The first of these instruments is a written lease contract dated June 3, 1949 by which appellee Carroll leased the building to Thornton and Harmon for a period of five years. The lease contract expressly provided that the $200 monthly rentals were payable in Scurry County, Texas. The second instrument relied upon by appellee is a written contract between Carroll and Terrazas, dated November 9, 1949 which is as follows 'That whereas, by agreement entered into by and between R. T. Carroll as lessor, and Henry G. Thornton and B. A. Harmon as lessees, which agreement was dated the ___ day of June, 1949, and which is recorded in Vol. ___ page ___ Deed Records of Scurry County, Texas, the said R. T. Carroll did lease and demise unto said lessees the following described property, to-wit:
'Being situated in Snyder, Scurry County, Texas, and being one brick building 24 X 90 , more or less, and being that building commonly designated as 2422 Avenue S, Snyder, Texas; for a term of five years beginning the 5th day of June, 1949 and ending the 4th day of June, 1954, paying therefor the sum of Twelve Thousand Dollars, payable in monthly installments of Two Hundred Dollars, such installments being payable on or before the 5th day of each succeeding month, in advance; and
'Whereas, the said Henry G. Thornton and B. A. Harmon have, by duly executed and recorded assignments, assigned all of their interests, titles and claims to said property unto Simon Terrazas, who is now the owner and holder of said lease; and
'Whereas, the said Simon Terrazas does now contemplate the improvement of said building hereinabove mentioned at his own cost and expense;
It is provided by Subdivision 5 of the venue statute that:
'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.'
In a suit upon a written contract which, by its express terms, is performable in a given county and the liability of the defendant is based upon the claim that the writing was executed by the...
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...one who accepts the benefits of a contract must also assume its burdens. Daniel v. Goesl, 161 Tex. 490, 341 S.W.2d 892; Terrazas v. Carroll, Tex.Civ.App., 277 S.W.2d 274. Where an entire lease is transferred, the assignee, as a matter of law, is rendered liable for the payment to lessor of ......
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