Waggoner v. Edwards

• Decision Date: 15 November 1933
• Docket Number: No. 4098.,4098.
• Citation: 68 S.W.2d 655
• Parties: WAGGONER et al. v. EDWARDS et ux.
• Court: Texas Court of Appeals

68 S.W.2d 655

WAGGONER et al. v. EDWARDS et ux.

No. 4098.

Court of Civil Appeals of Texas. Amarillo.

November 15, 1933.

Rehearing Denied March 5, 1934.

Appeal from District Court, Lamb County; Charles Clements, Judge.

Suit by J. Arthur Edwards and wife against W. T. Waggoner and others. From an order overruling two separate pleas of privilege, the defendants appeal.

Judgment affirmed, and motion to certify questions overruled.

Seth Barwise, Thompson & Barwise, and Hiner & Pannill, all of Ft. Worth, and R. C. Gwilliam, of Tulsa, Okl., for appellants.

C. D. Russell, of Plainview, for appellees.

HALL, Chief Justice.

The appellee Edwards and wife sued W. T. Waggoner, E. A. Compton, and A. B. Wharton, Jr., all of whom were alleged to reside in Tarrant county, Tex., and the Marathon Oil Company, alleged to be a foreign corporation having a permit to do business in Texas and having an agent in Dallas county, Tex., upon whom process might be served. The plaintiffs alleged that they were the owners and in possession of lot No. 1, block No. 73, in the town of Olton, Lamb county, upon which there was located a building used as a gasoline service station; that they also owned certain personal property situated on the lot and used in connection with the station; that on the 28th day of May, 1930, they executed a written lease to the Three D's Products Distributors, Inc., a domestic corporation, for a term of five years at a rental of $250 per month, payable in advance. The contract contains the following provisions material to the issues to be decided:

"3. Lessor and lessee mutually stipulate, contract and agree:

"That if the building, constructed upon the leased premises, shall be destroyed or rendered untenable by fire or unavoidable accident, without fault or default on the part of Lessee, then Lessor shall, with reasonable diligence and dispatch, and at Lessor's expense, repair and replace such damaged or destroyed building, so that same will be in substantially as good a condition as before its destruction or damage; and, during the period of time that said building is being so repaired or replaced, lessee shall only pay a ratable proportion of the rent, corresponding with the extent of use of the building, should it only be partially damaged, and should said building be totally damaged or destroyed, then lessee shall pay no rent during the time intervening before said building is replaced; provided, however, in the event said building is so damaged or rendered untenable, by fire or unavoidable accident, as to require, in the judgment of lessor, substantially its entire replacement, then it is mutually agreed that lessor shall have the right to declare this contract terminated, and thereupon, in consideration thereof, lessee shall be released and discharged of any further rentals which would accrue if this lease were continued to the end of the term first herein named. * * *

"5. This lease contract shall run to and in favor of lessor and lessee, and their respective successors and assigns."

This lease appears to have been executed in Lamb county and acknowledged by Edwards before a notary public of that county on the 3d day of July, 1930. It was acknowledged by A. B. Wharton, Jr., as president of the Three D's Products Distributors, Inc., on the 29th day of May, before a notary public of Tarrant county.

Plaintiff further alleged that about the 4th day of December, 1930, Waggoner, Wharton and Compton, acting for the Three D's Products Distributors, Inc., and for the stockholders thereof (said corporation having theretofore been dissolved), assigned, transferred, and conveyed to the Marathon Oil Company the aforesaid lease, and pleaded the assignment in full, as follows:

"The State of Texas, County of Lamb:

"Assignment of Lease

"That, the Three D's Products Distributors, Incorporated, a dissolved corporation of Fort Worth, Tarrant County, acting by and through A. B. Wharton, Jr., W. T. Waggoner and E. A. Compton, being all of the former directors and Trustees for the Stockholders of Three D's Products Distributors, Incorporated, a dissolved corporation, for and in consideration of Five Hundred and No/100 ($500.00) Dollars, cash in hand paid, by Marathon Oil Company, a corporation, of the State of Delaware, and other valuable consideration, receipt of which is hereby acknowledged,

"Does hereby assign, transfer and convey unto the said Marathon Oil Company, a corporation, a certain lease bearing date of May 28, 1930, made by J. Arthur Edwards of Lamb County, Texas, for a term of five (5) years, reserving unto the said J. Arthur Edwards, the rental of Two Hundred and Fifty and no/100 ($250.00) Dollars per month, payable per month in advance, with all and singular the premises therein described and mentioned and the buildings thereon, together with the appurtenances therein mentioned and described; being Lot No. 1, Block No. 73, Olton, Lamb County, Texas,

"To have and to hold the same for and during the remainder of the term mentioned in said lease, with the rights and privileges therein granted.

"And we do further covenant that the said assignment [ed] premises are free from all other gifts, grants, bargains, sales, leases and incumbrances by us suffered, made or created.

"Executed at Fort Worth, Texas, on this the 4th day of December, 1930.

                    "Three D's Products Distributors
                                          Incorporated
                "[Corp. Seal]     By  A. B. Wharton, Jr
                                     "E. A. Compton
                                     "W. T. Waggoner
                    "Former Directors and Trustees for the
                    Stockholders of Three D's Products Distributors
                    Incorporated, a dissolved corporation.
                "Attest:
                    "E. A. Compton, Secretary."
                

It was acknowledged before a notary public of Tarrant county.

Plaintiffs then alleged that the rentals provided by the lease contract had not been paid for the months of September, October, and November, 1932, and prayed for judgment against defendants jointly and severally therefor.

The Marathon Oil Company filed its plea of privilege, alleging it was not a resident of Lamb county, but of Tarrant county; that it was a foreign corporation with a permit to do business in the state of Texas and maintained its general offices for that purpose in Fort Worth. Waggoner, Wharton, and Compton filed their joint plea of privilege on the same day, alleging that they were not residents of Lamb county, but during all the times involved were residents of Tarrant county.

Thereafter the plaintiffs in due time filed controverting affidavits, to each of which was attached a copy of plaintiffs' original petition. They alleged, in substance, that the lease contract was executed in Lamb county, and that plaintiffs' cause of action arose in Lamb county, and that the Marathon Oil Company, being a foreign corporation, could be sued in Lamb county under R. S. art. 1995, subds. 23 and 27, and, because the lease contract was in writing and performable in Lamb county, venue was properly laid in such county under subdivision 5 of said statute.

As to the three individual defendants, plaintiffs' controverting affidavit alleged that their cause of action was based upon the lease contract attached to their original petition; that said contract was executed in Lamb county, and therefore the cause of action arose in said county, in consequence of which the suit against the corporation by and through its directors and trustees was maintainable in said county under R. S. art. 1995, subds. 5 and 23, and that said individuals, being necessary parties to the suit, were properly made parties under subdivision 29a of said statute.

The pleas of privilege, together with the controverting affidavits, were thereafter submitted to the trial court, who, after hearing the evidence and argument of counsel, overruled both said pleas of privilege, from which order all of the defendants appealed.

R. S. art. 1995, subd. 23, provides that suits against a private corporation may be brought in any county in which the cause of action or a part thereof arose. Subdivision 27 provides that foreign corporations, private or public, not incorporated by the laws of this state and doing business within the state, may be sued in any county where the cause of action or a part thereof accrued. Under these two provisions of the venue statute, the Three D's Products Distributors, Incorporated, was properly sued in Lamb county. The testimony shows without question that the original lease contract was prepared by the officers of the Three D's Products Distributors, Inc., executed by A. B. Wharton, Jr., and thereafter was presented by its agent to Edwards in Lamb county and executed by him there. It is uniformly held that the cause of action, as used in subdivision 23, supra, comprehends the agreement between the parties, its performance by the one and breach by the other, and to arise either in the county where it was made, where it was breached or where the defendant resides. 11 Tex. Jur. 53, § 401.

Id. § 402, says: "For other purposes, the courts have had occasion to define what constitutes a cause of action. These cases may doubtless be usefully referred to in connection with the application of the venue statute, but it must not be overlooked that the words `or a part thereof' form one of the essentials of the statutory criterion. Plainly it is not necessary that all the facts constituting a cause of action shall have arisen in the county of the suit. The added phrase `or a part thereof' has the effect for the purpose of the venue to divide the cause of action and to permit the trial to be where any portion of the cause has arisen; otherwise the phrase would be without meaning and effect. * * * More specifically in the case of an action on a contract, the cause of action is composed of the facts relating to the formation of the contract and those constituting its breach."

Id. § 403: "The requirement of the statute [Sec. 23] that part of the cause of...