25 S.W.2d 229 | Tex. App. | 1930
This is an appeal by Texas Farm Mortgage Company, a corporation, from a judgment overruling its plea of privilege to be sued on the cause of action asserted herein in Dallas county, where it has its domicile. This suit was filed by appellees H. B. Starkey and J. A. Harper against appellant upon a contractual receipt in writing, dated June 4, 1929, signed by appellant alone, for the sale by it and purchase by appellees of 60 acres of land situated in Hill county, Tex. Said writing acknowledged the receipt of the sum of $250 cash to be applied on the purchase price of said land, and recited that the remainder of the consideration was to be paid when abstract and deed to said land were delivered to the Texas Bank Trust Company at Austin. The final sentence in said writing is as follows: "It is agreed that Messrs. Harper and Starkey may take immediate possession of said 60 acres." Appellees pleaded said writing in hæc verba. They further alleged that appellant failed to comply with the obligations imposed upon it thereby and failed to deliver abstract and deed to said bank at Austin, but nevertheless retained said initial cash payment of $250 until June 15, 1929, at which time it attempted to rescind said trade and offered to return said money, and that appellees refused to agree to such rescission and declined to accept a return of said money. Appellees further alleged that said property had become very valuable by reason of the discovery of oil in close proximity thereto. They prayed for judgment for the title and possession of said land, and requiring appellant to perform its agreement and accept the balance of the purchase money due thereon. They further prayed, in event appellant was unable to convey to them a good title to said land, for damages in the sum of $20,000.
Appellant filed its plea of privilege in due form, in which it alleged that said suit was for specific performance of an agreement for the conveyance of land, and in the alternative for damages, and that it resided and had its principal office in Dallas county. Said plea properly negatived the existence of any of the statutory exceptions authorizing the maintenance of this suit in any county other than the county of its residence.
Appellees filed a controverting affidavit, in which they alleged that the cause of action asserted by them was based upon a contract between them and appellant, by the terms of which appellant sold and became obligated and bound to convey to them the title to certain real estate situated in Hill county, Tex., and to deliver possession thereof to them and to permit them to enter upon, possess, use, and enjoy the same. They further alleged that appellant was a corporation and that by reason of its failure and refusal to perform its obligations under said contract, a part of the cause of action sued on arose in Hill county.
A hearing was had before the court on the issue of venue alone, at which hearing appellant's plea of privilege was overruled.
Appellees by a further counter proposition contend that the action of the trial court in overruling appellant's plea of privilege was proper on the ground that a part of the cause of action asserted by them arose in Hill county. Appellant being a corporation, venue in Hill county could be maintained on such ground. Revised Statutes, article 1995, subdivision 23. A cause of action, within the meaning of said subdivision, may be regarded as composed of two elements, the primary right of the plaintiff and the act or omission of the defendant, without which no cause of action or right of recovery against him exists. Graves v. McCollum
Lewis (Tex.Civ.App.)
Appellant's contention is sustained, and appellees' contentions are overruled. The judgment of the trial court is reversed, and the cause is remanded, with instructions to transfer the same to some court of competent jurisdiction in Dallas county.