Ucovich v. First Nat. Bank

• Decision Date: 10 May 1911
• Citation: 138 S.W. 1102
• Parties: UCOVICH v. FIRST NAT. BANK OF VICTORIA et al.
• Court: Texas Court of Appeals

138 S.W. 1102

UCOVICH v. FIRST NAT. BANK OF VICTORIA et al.

Court of Civil Appeals of Texas. San Antonio.

May 10, 1911.

Rehearing Denied June 7, 1911.

Appeal from District Court, Victoria County; James C. Wilson, Judge.

Action by the First National Bank of Victoria against M. Ucovich and Ira P. Bailey, in which M. Ucovich pleaded a cross-action against Bailey. From a judgment for plaintiff, which also denied his cross-action, Ucovich appeals. Affirmed.

Sam C. Lackey, Dupree & Pool, and J. B. Lewright, for appellant. Fly & Daniel and Proctor, Vandenberge & Crain, for appellees.

JAMES, C. J.

This is an action brought by appellee bank against M. Ucovich, a resident of Nueces county, and the Bailey Mills Company, a firm composed of Ira P. Bailey, a resident of Victoria county, for a balance of $1,219.86 claimed to be due by Ucovich on a settlement of matters connected with a building contract between Ucovich and Bailey. The petition alleged that this balance was assigned by Bailey to the plaintiff bank; he guaranteeing the payment of same within 10 days from the date of the assignment. The bank sued Ucovich as principal debtor and Bailey (doing business as the Bailey Mills Company) as guarantor, and recovered judgment for said balance against the former with interest from January 4, 1908, the date of the settlement, and against the latter for like amount as guarantor, and providing that no levy should be made on Bailey's property in case the judgment could be made out of appellant.

Ucovich duly pleaded privilege of being sued in Nueces county; that he never contracted to perform the obligation sued on in Victoria county, but, on the contrary, by the express terms of a supplemental contract of date July 7, 1907, between him and the Bailey Mills Company it was agreed that any and all disputes, if any, which might arise between the parties, should be settled in the county where the property, upon which the improvements were, is located, or in the county in which the defendant, the owner, resided. Ucovich pleaded, also, that he has been joined as defendant herein with said Bailey as the result of a collusive agreement between the bank and said Bailey, having for its purpose the forcing of this defendant to contest the cause of action in Victoria county; that plaintiff did not in good faith enter into the contract of sale and guaranty of this claim; but that Bailey executed same pursuant to an agreement with the bank that he would execute it in order that plaintiff could and would bring suit on same in Victoria county against him and this defendant upon the ground that Bailey is a resident of Victoria county; that said assignment and guaranty was without consideration, etc.

For answer, subject to said plea, appellant entered a general denial, and specially pleaded by cross-action that Bailey had not performed his building contract with appellant, and had been paid in full and overpaid; that Bailey is justly indebted to appellant in a large amount for liquidated damages on account of his failure to complete the building within the contract period, as well as for other sums representing the reasonable value of certain materials and labor specified in the contract which were omitted in the construction; and that Bailey failed in numerous respects to construct the building in accordance with the plans and specifications therefor, thereby depreciating the market value of the building to the extent of $2,500 in addition to other sums, to wit, $1,258.61 paid to Bailey in excess of the contract price and appellant's liability under the contract, liquidated damages in the sum of $2,081.12, and prayed for judgment against Bailey accordingly. There was a sworn denial that appellant ever made or agreed upon any such pretended settlement of date January 4, 1908, as that alleged by plaintiff.

The Bailey Mills Company admitted plaintiff's demand and denied all the allegations of appellant.

The court submitted the plea of privilege, by explaining to the jury that it was asserted upon two grounds: (1) That the transfer of the claim to plaintiff was without consideration, was not taken by plaintiff in good faith, but the primary, if not the sole, object thereof, was to confer jurisdiction upon the courts of Victoria county in pursuance of a collusive combination or agreement between plaintiff and the Bailey Mills Company; and (2) that by the express terms of a written supplemental contract of date July 7, 1907, it was stipulated and agreed that any and all disputes, if any, which might arise between the parties to the original building contract, should be settled in the county where the building was to be erected, or in the county where Ucovich should reside, that is, in Nueces county, where the building was to be erected, or in Bexar county, where said defendant now resides. Upon these issues the court charged first that, if the jury believed from the evidence that the transfer of the claim was made without consideration and solely for the purpose of conferring jurisdiction on the district court of Victoria county over the person of the defendant Ucovich, to find for him. But if they should find that at the time of the transfer the Bailey Mills Company was lawfully indebted to plaintiff and that the transfer was made in good faith as a payment on such indebtedness and accepted by plaintiff as such payment, "then to find against Ucovich upon his said plea of privilege, even if you may believe that said transfer may have been made for the purpose of conferring jurisdiction of the district court of Victoria county, upon the person of said Ucovich."

Immediately following the above, the court proceeded: "You are further instructed that, if from the evidence you find against the defendant Ucovich on the first reason or ground of his plea of privilege under the instruction hereinbefore given, then you will take up and consider the second reason or ground alleged; that is to say," etc. Then the court submitted to the jury the second ground, informing them that plaintiff and Bailey had denied under oath the execution of the supplemental agreement of July 7, 1907, and that this imposed upon Ucovich the burden of proof to show by the preponderance of evidence its execution by the Bailey Mills Company; that if it was executed by the Bailey Mills Company then to find for Ucovich on the second reason or ground of his plea of privilege, unless they found from the evidence that Ucovich and the Bailey Mills Company agreed upon a settlement and made an agreement on January 4, 1908, that there was a balance of $1,219.86 due and owing to the Bailey Mills Company, and, if so, then to find against Ucovich on said plea. The court then further instructed them that, if they believed from the evidence that Ucovich and the Bailey Mills Company, through its agent, S. M. Bailey, met on said date for the purpose of making a final settlement under their contract and agreeing upon what amounts, if any, might be due either party, and that such settlement was made, and that it was then agreed that there was due the Bailey Mills Company, then to find for plaintiff for such sum.

As to the cross-action of Ucovich for judgment against Bailey, the court instructed the jury to allow nothing thereon. The jury were directed by the charge to return a verdict for plaintiff against the Bailey Mills Company for the sum of $1,272.72.

The first assignment of error is that the verdict is contrary to and unsupported by the overwhelming weight of the testimony, in that all the testimony showed that the true and only purpose of the transfer and guaranty was to...