Waldrep v. Roquemore

• Decision Date: 30 March 1910
• Citation: Waldrep v. Roquemore, 127 S.W. 248, 60 Tex.Civ.App. 138 (Tex. App. 1910)
• Parties: WALDREP v. ROQUEMORE et al.
• Court: Texas Court of Appeals

Page 248

127 S.W. 248

WALDREP v. ROQUEMORE et al.

Court of Civil Appeals of Texas.

March 30, 1910.

Appeal from Coleman County Court; F. M. Bowen, Judge.

Action by G. P. Roquemore against W. P. Waldrep and others. From the judgment, said Waldrep appeals. Reversed and remanded.

Snodgrass & Dibrell and J. A. B. Miller, for appellant. J. C. Randolph, for appellee.

RICE, J.

On the 14th of November, 1907, appellant a resident of Gonzales county, Tex., contracted in writing to sell and deliver on the 23d of November, 1907, to H. N. Beakley of Coleman County, Tex., f. o. b. cars at Gonzales, Tex., one car of pecans, to weigh 30,000 pounds, at four cents per pound. The Funston Dried Fruit & Nut Company, a corporation of St. Louis, Mo., though not named therein, was a party at interest in said contract. Appellant failed to deliver the pecans, as provided in said contract; and it is claimed that, between the date of purchase and the date for delivery of same, pecans had advanced in price two cents per pound, whereby it is alleged that appellee Roquemore was damaged on account of said breach of contract two cents per pound on said car load. Thereafter said Beakley and said Funston Company assigned said contract and cause of action thereunder to appellee Roquemore, guaranteeing its payment to him, together with the court costs and attorney's fees at Coleman, Tex., on or before June 8, 1908; and, appellant having refused to pay anything thereon, this suit was brought by appellee against him, said Beakley and the Funston Company to enforce collection thereof. Before pleading to the merits, appellant in limine presented his plea of personal privilege, in due form, to be sued in Gonzales, the county of his residence, and further set forth therein that said assignment of said alleged cause of action by Beakley and the Funston Company was fictitious, fraudulent, and without consideration, and was not made in good faith, but for the purpose of conferring jurisdiction of the matters in controversy on the county court of Coleman county. And thereafter, among other defenses, alleged that the said Beakley, at the time of the execution of said contract, agreed to furnish him a bank guaranty, meaning thereby that said Beakley was to furnish this defendant with the guaranty of his bank at Coleman, Tex., to the effect that the draft of said Beakley on appellant for the purchase price of said pecans would be paid by said bank, which guaranty was not furnished until long after the time for the fulfillment of said contract, and that by reason of the failure of said Beakley to furnish said guaranty he breached said contract, whereby defendant was released from all liability thereunder. Defendants Beakley and the Funston Company answered, admitting the truth of the facts set forth in plaintiff's petition, and, so far as any contest between themselves and appellant was concerned, they adopted the pleadings of plaintiff; and further answered, denying that they ever made or entered into any contract whereby they agreed to furnish appellant said bank guaranty, as claimed by him. By supplemental petition it was asserted on the part of plaintiff that appellant, since the filing of his plea of privilege, had waived the same on account of obtaining a continuance at the July term of said court for the purpose of procuring the testimony of one Miller, to establish his defense that Beakley had agreed to furnish him a bank guaranty, as alleged in his answer. Other matters were set forth in the supplemental answer, unnecessary to mention. There was a jury trial, resulting in a verdict and judgment for plaintiff against appellant, as principal, and appellees Beakley and the Funston Dried Fruit & Nut Company, as guarantors, for the sum of $450, together with interest thereon and costs of suit, and judgment over in favor of said guarantors against appellant for said sum, from which judgment appellant alone prosecutes this appeal.

While there are numerous errors assigned, we think, in the view we have taken of this case, that it is only necessary to consider the first, which urges that the court erred in refusing to give appellant's peremptory charge instructing the jury to return a verdict for him on his plea of privilege. The record discloses that appellant, at the time of the institution of this suit, and for many years prior thereto, was a resident citizen of the county of Gonzales, state of Texas; and while it appears that the assignment from Beakley and the Funston Company of the cause of action and the guaranty of its payment sued upon herein was in the usual form and stated as a consideration therefor the sum of $1 paid in hand, and other valuable considerations to be paid them by appellee, yet it is further shown that, at the time it was made, said parties contemporaneously therewith executed the following contract and agreement, to wit: "Know all men by these presents that we, R. E. Funston Dried Fruit & Nut Company of St. Louis, Mo., and H. N. Beakley of Coleman county, Tex., parties of the first part, and G. P. Roquemore, of Coleman county, Tex., party of the second part, contract and agree with each other as follows: (1) That whereas, by conveyance and assignment of even date herewith the parties of the first part have assigned to the party of the second part all claims, demands and causes of action, liquidated and unliquidated, legal and equitable that they jointly and severally have and hold against W. P. Waldrep & Co. and W. P. Waldrep, of the county of Gonzales in the state of Texas; and whereas the consideration recited in said conveyance is $1 paid and other considerations paid and to be paid: Now, therefore, this instrument witnesseth that the consideration to be paid is as follows: The party of the second part herein agrees and binds himself to pay unto the parties of the first part for said claims, demands and causes of action so assigned to him, a sum of money equal to all sums of money recovered by him in any suit he may bring against W. P. Waldrep & Co. or W. P. Waldrep, upon said claims, demands and causes of action upon collection thereof, less a sum equal to 10 per cent. upon the amount collected. (2) That the parties of the first part bind themselves to pay all costs of such suit brought by the party of the second part, as may therein be adjudged against the party of the second part upon hearing of such suit, and 10 per cent. upon the amount recovered by the party of the second part in such suit as attorney's fees."

Appellee testified that Beakley first approached him offering to sell him this contract for a consideration of $1, and for 10 per cent. of any amount that might be recovered in the suit to be brought thereon, he returning or paying to Beakley and the Funston Company 90 per cent. of the amount so recovered; that he had not dealt in similar contracts, this being the first that he had ever purchased; that the only amount he paid thereon was the sum of $1; that he knew at the time of its purchase that suit would have to be brought thereon, but did not know at that time that it was made for the purpose of bringing suit in Coleman county, but knew it afterwards; that he was guaranteed against the payment of attorney's fees and court costs, in the event of such suit.

Counsel for appellant contends that the transfer, together with the instrument above set out, taken in connection with the testimony of plaintiff, shows conclusively that no assignment or sale of the claim was in fact made by Beakley and the Funston Company to appellee, but that a proper legal construction of the two instruments, which were executed cotemporaneously, transfers to said Roquemore nothing more than 10 per cent. of whatever he recovers; that Beakley and the Funston Company are in fact the owners of nine-tenths of the claim sued upon; and that they are improperly joined as defendants in this suit, because, if the contract was a bona fide one, it creates simply a partnership between plaintiff and the defendants Beakley and the Funston Company, and therefore their interests could not be adverse.

We are inclined to agree with appellant in this contention. At most, the two instruments, when taken together, merely grant to appellee the right to bring suit against appellant on the assigned cause of action for himself and the other parties at interest, Beakley and the Funston Company. And in the event of recovery, the amount thereof was to be divided between them in accordance with the terms of said agreement; appellee receiving one-tenth and Beakley and the Funston Company nine-tenths thereof. This, of course, makes them joint owners in the recovery. Nor do we think that the guaranty of the payment thereof by Beakley and the Funston...