Walker v. Alexander

• Decision Date: 11 January 1919
• Docket Number: (No. 8962.)
• Citation: 212 S.W. 713
• Parties: WALKER et al. v. ALEXANDER.
• Court: Texas Court of Appeals

Page 713

212 S.W. 713

WALKER et al. v. ALEXANDER.

(No. 8962.)

Court of Civil Appeals of Texas. Ft. Worth.

January 11, 1919.

On Motion for Rehearing, March 1, 1919.

On Appellants' Motion for Rehearing, May 10, 1919.

Appeal from Jones County Court; J. F. Lindsey, Judge.

Suit by F. I. Walker and others against W. J. Alexander. From a judgment sustaining defendant's plea of privilege, plaintiffs appeal. Reversed, and judgment rendered for plaintiffs.

Joe C. Randel, of Hamlin, for appellants.

Walter S. Pope, of Anson, for appellee.

BUCK, J.

This is an appeal from a judgment of the county court sustaining defendant's plea of privilege to be sued in the county of his residence. Plaintiffs filed suit in the justice court, as shown by the citation, to recover against defendant the sum of $100, alleged to be due in the way of a commission for procuring a purchaser for the sale of land belonging to defendant, and which had been placed in their hands for sale. Plaintiffs alleged the agreement on the part of defendant to pay plaintiffs for their services the specified amount of $100. In the judgment in the justice court it is stated that the suit was for "commission of $100 of date due, interest for $1.00, total amount of damages $101.00." Defendant's plea of privilege to be sued in the county of his residence was overruled in the justice court. Plaintiffs recovered in the justice court, and on appeal to the county court defendant again interposed his plea of privilege, which was sustained. In the county court, by oral pleadings, plaintiffs sued upon an express contract on the part of the defendant to pay them $100 to procure a purchaser for said land, and they alleged they had found such purchaser, who was able, ready, and willing to purchase said land upon terms satisfactory to defendant, and that said purchaser and defendant entered into a written contract of purchase, and that defendant failed to do the things required of him by the written contract, and that the prospective purchaser did not buy the land because of such failure. Plaintiffs sought to recover judgment for $100, principal, and interest at 6 per cent. from May 16, 1916, in the total sum of $108.

At the threshold of the consideration of this appeal we are confronted with the question of the jurisdiction of this court. Article 1589, subd. 3, of Vernon's Sayles' Texas Civil Statutes, provides that the appellate jurisdiction of Courts of Civil Appeals shall extend to civil cases within the limits of their respective districts, "of which the county court has appellate jurisdiction, when the judgment, or amount in controversy, or the judgment rendered, shall exceed one hundred dollars, exclusive of interest and costs." See Ray v. S. A. & A. P. Ry. Co., 18 Tex. Civ. App. 665, 45 S. W. 479; Green et al. v. Warren et al., 18 Tex. Civ. App. 548, 45 S. W. 608.

"`Interest' is the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money." Article 4973, Vernon's Sayles' Revised Statutes.

"`Legal interest' is that interest which is allowed by law when the parties to a contract have not agreed upon any particular rate of interest." Article 4974, Vernon's Sayles' Revised Statutes.

Article 4977, Id., provides:

"On all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties to the contract, interest shall be allowed at the rate of six per cent. per annum from and after the time when the sum is due and payable."

Article 4978, Id., provides that 6 per cent. interest shall be allowed on all open accounts from the 1st day of January after the same are made. This cannot be held to be a suit on "open account." Wroten Grain & Lumber Co. v. Mineola Box Mfg. Co., 95 S. W. 744. There seems to be no statutory provision for interest upon a fixed amount due under an express parol contract, and therefore interest eo nomine would not be recoverable as interest, but might be recoverable by way of damages. Interest by way of damages, while not an incident of debt, is allowed as a punishment for some fraud, delinquency, or injustice of debtor, or for some injury done by him to his creditors. Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; Railway Company v. Jackson, 62 Tex. 209; Fowler v. Davenport, 21 Tex. 626, 635; Close v. Fields, 13 Tex. 623.

In Heidenheimer v. Ellis, supra, the court said:

"It is frequently said in the decisions of the courts that interest is the creation of the statute. In a certain sense this is true, but as applied to one class of cases the phrase is misleading. Interest cannot be allowed eo nomine, unless expressly provided for by statute; but in many instances it may be assessed as damages when necessary to indemnify a party for an injury inflicted by his adversary, though the statute be silent upon the subject."

In Watkins v. Junker, 90 Tex. 584, 40 S. W. 11, it is said:

"Interest as damages may be allowed upon unliquidated demands whether they arise out of a breach of contract or out of a tort. Sedgwick on Damages, vol. 1, § 320. * * * It has been generally held by the courts that the jury may allow interest upon damages arising out of the breach of a contract made by a carrier for the carriage and delivery of goods. * * * Also upon damages arising from the breach of a contract for the sale and delivery of specific articles and for the breach of a contract of warranty of personal property. * * * If one takes possession of the horse of another and withholds it from the owner, compensation for the value of the use of the horse during the time is a legal right, and no court would hesitate to instruct the jury to so find, and we can see no difference between the right to be compensated for detaining a horse worth $100 and the right to be compensated for the detention of $100, the value of the horse, in case he was killed or converted to the use of the taker."

From the above authorities, and others which might be cited, we are of the opinion that, if interest is recoverable in this case, it is not as an incident of the debt, interest eo nomine, but interest in the way of damages. If this conclusion be sound, and we think it is, the amount in controversy exceeded $100, and this court has jurisdiction to entertain the appeal.

Defendant's plea of privilege to be sued in the county of his residence was in writing and duly verified, as was plaintiffs' controverting answer. Neither party offered further evidence upon the question of plea of privilege, and the court sustained said plea. It is provided by Acts 35th Leg. (1917) p. 388 (Vernon's Sayles' Ann. Civ. St. 1914, art. 1903), amending article 1903 of the Revised Statutes, that a plea of privilege to be sued in the county of one's residence and containing the statutory requirements shall be sufficient if it be in writing and sworn to, and that when such a plea is filed it shall be prima facie proof of the defendant's right to change of venue. Said article, as amended, further provided that upon the filing of such controverting plea the court shall give a hearing upon the issue made.

As was said in R. L. Ray et al. v. W. W. Kimball Co., 207 S. W. 351, recently decided by this court:

"The issue having been joined by the sworn pleas of defendants and plaintiff, the duty of the court to hear such issue is invoked. If no evidence is introduced to show that the facts alleged in the controverting plea are true, then the court is required to sustain the plea of privilege."

Again it is said in the same case:

"The statute above noted makes the sworn plea of the defendants prima facie proof of the right to a change of venue, but does not make the controverting affidavit of plaintiff proof of anything."

Hence, if article 1903, as amended, applies, the court properly sustained the plea. But appellants urge that, under the article before the amendment, the burden of proof was on the defendant interposing the plea to establish the allegations therein contained, and that under the former statute the sworn plea did not constitute prima facie proof, or any kind of proof, of the truth of the allegations; that under the statute before amendment the filing of a sworn plea of privilege merely presented the issue. Appellants further aver that this suit is shown to have been filed February 10, 1916; the plea of privilege was filed in the justice court March 20, and overruled May 16, 1916, while the amended statute took effect July 1, 1917. The case was tried in the county court October 3, 1917. Article 2308, subd. 4, Vernon's Sayles' Texas Civil Statutes, was amended by the Thirty-Fifth Legislature (chapter 124); said amendment taking effect ninety days after adjournment, June 19, 1917. The section as amended reads as follows; the amendatory words being here written in italics:

"Suits upon a contract in writing, promising performance at any particular place, may be brought in the county and precinct in which such contract was to be performed: Provided that in all suits to recover for labor actually performed, suit may be brought and maintained, where such labor is performed, whether the contract for same be oral or in writing."

Appellants claim venue of this suit in Jones county by reason of the amendment above set out, and cite such cases as H. & T. C. Ry. Co. v. Graves, 50 Tex. 181, Texas Midland Ry. Co. v. S. W. Tel. & Tel. Co., 24 Tex. Civ. App. 198, 58 S. W. 152, Phœnix Ins. Co. v. Shearman, 17 Tex. Civ. App. 456, 43 S. W. 931-1063, 93 Tex. 668, Odum v. Garner, 86 Tex. 374, 25 S. W. 18, and McCutcheon v. Smith, 194 S. W. 831, as supporting the contention that venue of this suit was fixed in Jones county by the amendment above quoted. Appellee cites such cases as Baines v. Jemison, 86 Tex. 118, 23 S. W. 639, as sustaining his contention that the amendatory act should not be given a retroactive effect so as to change the venue of pending cases. But we are not called upon in this appeal to...