431 S.W.2d 369 | Tex. App. | 1968
This is an appeal from an order overruling pleas of privilege filed by appellants.
Appellee brought suit against Fred Hall, IEH .Petroleum, Inc., Ernest M. Hall, Jr., and J. W. Williams on a promissory note and a guaranty agreement. Appellants filed pleas of privilege to be sued in the county of their residence. A proper controverting plea was filed. At the hearing, appellee introduced copies of a promissory note signed by IEH Petroleum, Inc., and Fred Hall. He introduced a copy of a written agreement executed by Ernest M. Hall, Jr., and James W. Williams. By the terms of this agreement they guaranteed the payment in full of any indebtedness, direct or contingent, of IEH Petroleum, Inc., to Donald McGregor whether existing at the time of the execution of the guaranty or thereafter arising. This instrument includes the following language:
“ * * * and I hereby bind and obligate myself, heirs and assigns, with said debtor, jointly and severally, for the payment of said indebtedness precisely as if the same had been contracted and was due or owing by me in person, hereby agreeing to, and binding myself, my heirs and assigns, by all the terms and conditions contained in any note or notes signed or to be signed by said debtor, making myself a party thereto; and I waive all notice of any kind whatsoever in connection with any obligations of the debtor. I agree to pay upon demand at any time to said DONALD McGREGOR, its transferees or assigns, the full amount of said indebtedness up to the amount of this guaranty, plus interest, attorneys’ fees, costs of court and charges, as above set forth, becoming subrogated in the event of payment in full by me to the claim of said DONALD McGREGOR, its transferees or assigns, together with whatever security it or they may hold against said indebtedness. * * * ”
Appellee relies on Section 4, Article 1995, Vernon’s Ann.Civ.St, to support the order of the trial court. To establish this exception to the general rule that one is entitled to be sued in the county of his residence, appellee had to establish that one defendant resides in the county of the suit, Harris County; that the parties asserting their privilege were at least proper parties to the claim against the resident defendants; and that appellee had a bona fide claim against the resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936).
By reason of the specific provisions of the guaranty agreement, J. W. Williams is jointly obligated with IEH Petroleum, Inc. and Fred Hall to pay the note on which this suit is based. So far as appel-lee is concerned Williams’ position is comparable to that of a joint maker of a promissory note. It is settled that joint makers of a promissory note are primarily, jointly and severally liable to the payee, and may be joined in a suit on the note. McDonald v. Cabiness, 100 Tex. 615, 102 S.W. 721 (1907); Poehnert v. Coryell, 317 S.W.2d 84 (San Antonio Civ.App.1958).
There being no sworn plea denying the execution of the note or guaranty agreement, and no specific allegation denying due execution in the plea of privilege, there was no necessity for proof of execution. Rule 86, Texas Rules of Civil Procedure. The possession of a note by the payee at the time of the suit, where there are no marks or endorsements on the note to show payment, is prima facie proof that the note is unpaid. 9 Tex.Jur.2d, Bills and Notes, §§ 275, 277, 288.
Appellee has made a prima facie case of liability as to the corporation on the note, and, it follows, a prima facie case of liability on the guaranty as to James W. Williams, one of the signatories.
The judgment of the Trial Court is affirmed.
Affirmed.
