Williams v. Goodpasture, Inc., 9155

• Decision Date: 15 October 1980
• Docket Number: No. 9155,9155
• Citation: 607 S.W.2d 52
• Parties: 31 UCC Rep.Serv. 622 Ray WILLIAMS and Williams Grain & Brokerage, Inc., Appellants, v. GOODPASTURE, INC., Appellee.
• Court: Texas Court of Appeals

Page 52

607 S.W.2d 52

31 UCC Rep.Serv. 622

Ray WILLIAMS and Williams Grain & Brokerage, Inc., Appellants, v.GOODPASTURE, INC., Appellee.

No. 9155.

Court of Civil Appeals of Texas, Amarillo.

Oct. 15, 1980.

Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellants.

Anderson, Rudd & Dyess, William A. Dyess, Brownfield, for appellee.

DODSON, Justice.

Goodpasture, Inc. instituted this action in Terry County, Texas, against Ray Williams, individually and Williams Grain & Brokerage, Inc., to recover on a promissory note executed by Ray Williams.The note provides for payment in Brownfield, Terry County, Texas.Ray Williams filed a plea of privilege to be sued in Lubbock County, Texas, his place of residence.The corporation, Williams Grain & Brokerage, Inc., did not challenge venue.In its controverting plea, Goodpasture, Inc. asserted venue in Terry County under subdivision 5 of Article 1995 of the Texas Revised Civil Statutes Annotated(Vernon Supp.1980).The trial court sustained venue in Terry County, Texas.Williams appeals from the order of the trial court overruling his plea of privilege.We affirm.

Williams Grain & Brokerage, Inc., was engaged in business with Goodpasture, Inc., and had a sizable open account with Goodpasture.A dispute arose concerning the account, and was resolved with the agreement that Goodpasture would receive a promissory note for $29,117.16 in settlement of the balance on the account.The note is in evidence and, in pertinent part, is as follows:

$29,117.16 * * * November 4, A.D. 1975

For Value Received, I, WILLIAMS GRAIN & BROKERAGE, INC. promise to pay to GOODPASTURE, INC. or order, the sum of ($29,117.16) ... payable at GOODPASTURE, INC., BOX 912, BROWNFIELD, TEXAS 79316.

This note payable in 1 (ONE) installments (sic) of $29,117.16 PLUS ACCRUED INTEREST ONE YEAR FROM DATE.

/s/ Ray Williams

While the note identifies Williams Grain & Brokerage, Inc., the corporate defendant, as an obligor, it is signed by the individual defendant, Ray Williams, the corporation's president.The note does not show that Mr. Williams signed as a representative of the corporation.

In his plea of privilege, Mr. Williams specifically denied "that he is liable in the capacity in which he is sued in this cause."Subject to the plea of privilege, Mr. Williams filed a sworn answer in response to Goodpasture's original petition.In the answer, he denied executing the promissory note in his individual capacity and further affirmatively pled that he executed the note only in his representative capacity as president of Williams Grain & Brokerage, Inc.In essence, Mr. Williams does not deny executing the note.By his pleadings, he only challenges the capacity in which the note was executed.

On appeal, Mr. Williams maintains among other things that a binding obligation against him on the note is a venue prerequisite under subdivision 5; that the evidence is neither legally nor factually sufficient to support an implied finding of a binding obligation against him on the note; that the evidence conclusively establishes only a corporate obligation; and that parol evidence is admissible to establish that he is not liable on the note.

In support of his position that a binding obligation against him on the note is a venue prerequisite under subdivision 5, Mr. Williams relies on Jordon v. Rule, 520 S.W.2d 463(Tex.Civ.App. Houston(1st Dist.)1975, no writ);Baccus v. Plains Cotton Coop. Ass'n, 515 S.W.2d 401(Tex.Civ.App. Amarillo 1974, no writ);Vaquero Drilling Co. v. Adcock, 453 S.W.2d 908(Tex.Civ.App. San Antonio 1970, no writ);andCovington-Compton Co. v. Medina Agriculture Products, Inc., 425 S.W.2d 694(Tex.Civ.App. San Antonio 1968, no writ).The court's decision in each case is not controlling in this instance.Thus, we deem unnecessary a detailed discussion of these cases.

In support of the trial court's order, Goodpasture, Inc. urges that it proved the essential venue facts required under subdivision 5, and that the issue of Mr. Williams' individual liability or non-liability is not a matter to be determined at the plea of privilege hearing, but can only be resolved by a trial on the merits.We agree with Goodpasture.

In the pertinent part, subdivision 5 provides:

(I)f a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.

Tex.Rev.Civ.Stat.Ann. art. 1995(5)(a)(VernonSupp.1980).Under this part of ...