Uvalde Const. Co. v. Shannon, 2296.
| Decision Date | 09 October 1942 |
| Docket Number | No. 2296.,2296. |
| Citation | 165 S.W.2d 512 |
| Parties | UVALDE CONST. CO. et al. v. SHANNON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Brown County; A. O. Newman, Judge.
Action by H. M. Shannon against the Uvalde Construction Company and another, for breach of a contract to purchase from plaintiff all caliche to be used by defendants in construction of roads, streets, etc., in and around a military camp. From a judgment overruling defendants' pleas of privilege, they appeal.
Reversed and remanded with directions.
Worsham, Burrow & Worsham, of Dallas, and Woodruff & Holloway, of Brownwood, for appellants.
Callaway & Callaway, of Brownwood, for appellee.
H. M. Shannon, a resident of Brown County, brought this suit against Uvalde Construction Company and Morgan Construction Company, both private corporations, to recover damages for breach of an alleged oral contract for the purchase by defendants and sale by plaintiff of all caliche to be used by the defendants in the construction of roads, streets, etc., in and around Camp Bowie. Each defendant filed a plea of privilege, alleging its place of residence to be Dallas County. Controverting pleas of plaintiff duly tendered as issues the facts necessary to sustain the venue under that provision of R.S.1925, Art. 1995, Exception No. 23, authorizing suits against private corporations to be brought "in any county in which the cause of action, or a part thereof, arose * * *".
Upon hearing, the court below overruled both pleas of privilege, from which action the defendants have appealed.
It is, in effect, admitted that the judgment is correct unless plaintiff had the burden of establishing the existence of a cause of action (as alleged) against each defendant and failed to do so. Defendants contend, in effect, that the contract as alleged by plaintiff was void, being against public policy, and in violation of the anti-trust statutes; that, therefore, plaintiff had no cause of action against either defendant and hence no cause of action, or part thereof, arose in Brown County.
Included in the venue facts in issue which plaintiff had the burden of establishing were the several elements of the cause of action, if any, alleged in plaintiff's petition as against each of the defendants. The authority for this statement is the decision in Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. The rationale of that decision is that under exception 9 (R.S.1925, Art. 1995) the burden of alleging and proving that a particular county was the place in which an alleged crime was committed includes the burden of alleging and proving that the crime was in fact committed. As applied to the particular provision of said Exception 23, hereinabove quoted, it would be correct to say that the burden of pleading and proving that a particular county (Brown County) was the place in which the alleged cause of action, or a part thereof, arose, includes the burden of alleging and proving the cause of action. Texas Coca-cola Bottling Company v. Kubena, Tex.Civ.App., 90 S. W.2d 605; Hill v. Uvalde Construction Company, Tex.Civ.App., 151 S.W.2d 283. For application of the same principle to Exception 29 (R.S.1925, Art. 1995), see Blanton v. Garrett, 133 Tex. 399, 129 S. W.2d 623; A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619.
It remains to consider whether, as contended by defendants, plaintiff failed to prove a cause of action against them. It is not claimed that there was a mere incompleteness of proof;...
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