175 S.W.2d 304 | Tex. App. | 1943
This is an appeal from an order overruling two pleas of privilege in an action brought in the district court of Fayette County, Texas, by appellee, Naomi Bibbs, seeking the recovery of damages alleged to have been sustained by her as a result of fraudulent representations made by appellant B. B. Kirkpatrick, which induced her to purchase certain real estate in Schulenburg, in Fayette County, Texas, from appellant Old National Life Insurance Company.
The fraud alleged was (1) the false representation that appellant Insurance Company had a good title to the land in question; (2) an agreement by appellants to refund the purchase price paid if the title to the property failed, made without intention to perform; and (3) an agreement, in substance, to convey said property to appellee by general warranty deed, made without intention to perform and not performed.
Appellants duly filed their separate pleas of privilege to have said suit tried in Harris County, the county of their residence, and motions for a separate trial on their said pleas of privilege prior to the trial of the case on its merits.
In due time appellee filed her controverting affidavit in which she re-stated the allegations of her petition and alleged that the false and fraudulent representations above referred to were made by appellant Kirkpatrick as agent for appellant Insurance Company in Fayette County.
Appellants' motions for a separate trial on their pleas of privilege prior to the trial of the case on its merits were sustained by the trial court and upon a hearing before the court on the allegations of said pleas of privilege, and appellee's controverting affidavit, said pleas of privilege were overruled. No findings of fact or conclusions of law were requested by the parties and none were filed by the trial court.
The record shows that appellee contracted in writing with appellant Insurance Company, a corporation, acting through its president and manager, B. B. Kirkpatrick, to purchase 92/100 acres of land in Schulenburg, Texas. The full purchase price for the property was paid on the date of the contract. The contract was executed in Schulenburg, Fayette County, Texas. Appellant Kirkpatrick admitted that, at the time the contract was executed, he represented to the appellee that the appellant Insurance Company claimed title to the property. Appellee testified that Kirkpatrick told her that he would give her a good title to said property.
To fix venue of this action in Fayette County appellee relies upon Subdivisions 7 and 23 of Article 1995, Vernon's Annotated Texas Civil Statutes.
Subdivision 7 of said article, as amended in 1927, reads: "7. Fraud and Defalcation. In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile." *306
The material parts of Subdivision 23 of said Article 1995 read: "23. Corporations and associations. — Suits [brought] against a private corporation, association or joint stock company may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its principal office is situated. * * *"
It is well settled that in an appeal from an order overruling a plea of privilege, every reasonable intendment must be resolved in favor of appellee's contentions. Sharp v. Mead et al., Tex.Civ.App.
It is also the settled law in this state that, under Subdivision 23 of said Article 1995, which authorizes the bringing of a suit against a private corporation in any county in which the cause of action, or a part thereof, arose, a cause of action for the breach of an obligation is composed of two elements: the contract, which is the primary right of the plaintiff, and the breach thereof, which is the act or omission on the part of the defendant without which there could be no cause of action or right of recovery, and that, in order to maintain a suit in any county other than that in which the corporation's principal place of business is located, it is only necessary that some part of either the primary right or the breach thereof must have occurred in the county where the suit was filed, and that the requirement that "a part thereof" shall have arisen in the county where the suit was brought is met by proof that the contract was made in that county. Scott v. Lewis, Tex.Civ.App.
It is undisputed that appellant Old National Life Insurance Company is a corporation and that all representations which led up to the purchase of said property were made in Fayette County. The record shows that the title to said property under appellee's deed from appellant Insurance Company failed; that suit was instituted against appellee for the title to the property and that a decree therein was adverse to her. It follows that appellee had a right to maintain her suit in Fayette County.
Appellants further complain of the action of the trial court in refusing to postpone the trial of the case on its merits until an appeal from the order overruling said pleas of privilege had been decided. This contention cannot be sustained. The exact question involved under this contention has recently been decided by our Supreme Court in the cases of Newlin v. Smith,
It follows that the judgment of the trial court overruling appellants' pleas of privilege must be affirmed.
Affirmed. *307