Thorndale Mercantile Co. v. Evens & Lee

• Decision Date: 28 February 1912
• Citation: 146 S.W. 1053
• Parties: THORNDALE MERCANTILE CO. v. EVENS & LEE et al.
• Court: Texas Court of Appeals

146 S.W. 1053

THORNDALE MERCANTILE CO. v.EVENS & LEE et al.

Court of Civil Appeals of Texas. Austin.

February 28, 1912.

On Motion for Rehearing, April 10, 1912.

Appeal from Williamson County Court; Richard Critz, Judge.

Action by the Phillip Carey Company against the Thorndale Mercantile Company, S. F. Evens, and L. M. Lee, with counterclaim by the Thorndale Mercantile Company.Judgment for plaintiff, and defendantThorndale Mercantile Company appeals.Reversed and remanded.

E. A. Camp, for appellant.O. E. Roberts, for appellees.

KEY, C. J.

The Phillip Carey Company, a foreign corporation, brought this suit in the county court of Williamson county against Thorndale Mercantile Company, doing business in Milam county, and against S. F. Evens and L. M. Lee, both residents of Williamson county.In its original petition the plaintiff alleged that the Thorndale Mercantile Company entered into a contract with Evens & Lee, by which the latter were to construct for the former a certain building at Thorndale in Milam county; that Evens & Lee constructed the building, and the Thorndale Mercantile Company paid them the amount owing therefor except $233; that Evens & Lee, by a written instrument, had transferred and assigned to the plaintiff said unpaid portion of the consideration for the construction of said building, and the suit was brought to recover the sum of $233, the amount thereof.The petition referred to did not allege any facts showing liability against Evens & Lee, but prayed that all the defendants be cited, and that upon final trial the plaintiff"have judgment for its damages, for costs of suit, and for general relief."In due time and order the defendantThorndale Mercantile Company filed a plea to the jurisdiction of the court, asserting its privilege to be sued in Milam county.The plea was in due form, and charged that the plaintiff had made Evens & Lee parties for the fraudulent purpose of conferring jurisdiction upon the court in the plaintiff's suit against the Thorndale Mercantile Company.After that plea was filed, the plaintiff filed an amended original petition, in which it alleged that Evens & Lee represented and guaranteed to the plaintiff that the Thorndale Mercantile Company was indebted to the firm of Evens & Lee in the sum of $233, and in that petition the plaintiff sought to recover from Evens & Lee if it was not entitled to recover against the Thorndale Mercantile Company.Upon the hearing as to the plea of privilege, the following testimony was submitted:

"It was agreed and admitted by all parties in open court that defendantThorndale Mercantile Company was a corporation, incorporated under the laws of Texas, with its principal office and place of business at Thorndale, in precinct No. 8, of Milam county, Tex., where it has had and maintained its only place of business during all of its existence, and that at no time has it ever had or maintained an agent, office, or place of business in Williamson county, Tex.And it was further agreed and stated in open court by all parties that the said Thorndale Mercantile Company had not contracted in writing to perform the obligation sued on nor to pay the money sued for in any particular county, and that none of the exceptions of venue mentioned in article 1194. 1195, and 1585 existed in this case, except subdivision 4 of article 1194 of the revised statutes of 1897, if it applies.

"The defendantThorndale Mercantile Company next offered in evidence a witness, S. F. Evens, who testified as follows: `I am S. F. Evens, one of the defendants in this case, and am a member of the firm of Evens & Lee, who made the contract herein sued on with Thorndale Mercantile Company, and with the Phillip Carey Company, for the roofing.My partner, Mr. Lee, and myself both reside at Taylor, in Williamson county, Tex., where we both have resided before, at the time of, and ever since the institution of this suit.I made the contract with said Thorndale Mercantile Company to build said building, and made the contract with the Phillip Carey Company, plaintiff, to put the roofing on same after the building was completed.The balance due by Thorndale Mercantile Company under said building contract to my firm was $233, and we owed the Phillip Carey Company a balance of $185, less some freight of about $18 that we had paid for them.Acting for the firm of Evens & Lee, we finally transferred to plaintiff the claim against Thorndale Mercantile Company of $233, and gave them a written transfer of same.'Here the witness identified the said assignment, which was as follows: `The state of Texas, County of Williamson.Know all men by these presents: That we, Evens & Lee, a copartnership, composed of S. F. Evens and L. M. Lee, for value received, do hereby transfer, assign and set over to the Phillip Carey Company, the sum of two hundred and thirty-three and no/100 dollars, being the balance due us from the Thorndale Mercantile Company, a private corporation, duly incorporated and having its principal place of business at Thorndale, Texas, for the construction of a certain building by us for the said Thorndale Mercantile Company, under written contract of date January 10, 1910.And this is to authorize and direct the said Thorndale Mercantile Company to pay to the said Phillip Carey Company the said sum of $233.Witness our hands this the 15th day of December, A.D. 1910.Evens & Lee, By S. F. Evens, A member of said firm.'And which assignment was offered in evidence by the plaintiff.`We did not owe the plaintiff all of the $233, but in order to get rid of the matter, and settle the Phillip Carey Company claim of $185 against us, and to avoid having to bring suit ourselves, we transferred the entire claim of $233 to the Phillip Carey Company, in full settlement of their claim against us.It was my understanding, also, that one of the purposes of this transfer was to enable the Phillip Carey Company to bring this suit against the Thorndale Mercantile Company and Evens & Lee in Williamson county.After we made this transfer, the plaintiff filed suit against the Thorndale Mercantile Company and the firm of Evens & Lee, and my firm of Evens & Lee waived citation and made their appearance in court in this cause.'The witness next identified the contracts between Evens & Lee and Thorndale Mercantile Company and between Evens & Lee and plaintiff, which are hereinafter copied and marked `Contract A' and `Contract B,' respectively, and which contracts were offered in evidence by defendantThorndale Mercantile Company, which contracts are copied in full on pages 5 to 12, inclusive, hereof, and are referred to and made a part hereof.`We transferred this claim to plaintiff.We told plaintiff that Thorndale Mercantile Company owed us a balance of $233 on our contract for constructing the building, and we transferred to them this amount in settlement of their claim against us.We represented to plaintiff that the balance due under the contract was $233, but we did not guarantee same, and did not put any guaranty into the written assignment that the $233, or any part of it, would be paid.We merely assigned this claim to plaintiff in settlement of their claim against us, and to enable them to bring suit in Williamson county against the Thorndale...