Zachry v. Robertson

This is a plea of privilege suit deriving from a cause of action filed in the District Court of Tarrant County, Texas, on January 7, 1947, by C. F. Hutches against appellee, Charles C. Robertson, doing business as the Fort Worth Pecan Shelling Company, alleging as a cause of action damages due him by Robertson, growing out of an alleged breach of contract under the terms wherein Robertson agreed to sell and deliver to Hutches a certain quantity of pecans. Appellee Robertson filed his original answer on February 10, 1947 and *Page 467 his amended original answer and cross action on February 26, 1947. On August 11, 1947, appellee Robertson included in his second amended answer and cross action a cause of action against appellant, H. B. Zachry, a resident of Bexar County, alleging, among other things, that H. B. Zachry was in truth and in fact the undisclosed plaintiff in the case and that as such he was entitled to recover the sum of $43,725.00 from the said Zachry as damages. To this cross action appellant, H. B. Zachry, duly filed a plea of privilege, which was duly controverted by appellee Robertson. The trial court overruled the plea of privilege; hence, the perfection of this appeal by appellant, H. B. Zachry, predicated upon two points of error, the first embracing in substance the following: That the trial court erred in holding that Zachry was subject to being sued on the amended cross action in Tarrant County by virtue of the fact that Hutches, who entered into the contract with Robertson as the undisclosed agent for Zachry, originally instituted the proceeding in Tarrant County, and prior to the institution of the suit Zachry had assigned all of his right, title and interest in the litigation to Hutches. Point No. 2 contains an objection leveled at the action of the trial court in overruling appellant's plea because he is not subject to being sued in Tarrant County on the cause of action set out in the cross action, which did not grow out of the original cause of action upon which suit was brought by Hutches. The facts disclose that originator of the suit, C. F. Hutches, entered into a contract with appellant, H. B. Zachry, on October 17, 1946, to the effect that said Hutches, among other things, would purchase a minimum of two million pounds of seedling pecans and for such services Hutches would receive a minimum of $100,000.00 net with all expenses paid. It is stipulated in paragraph 4 of the contract, "It is agreed between the parties hereto that all purchases made by Hutches for Zachry will be made in Hutches' name for Zachry as Hutches' undisclosed principal, and that Hutches will hold the title to said pecans solely as agent for Zachry and will sell and assign the same at any time either to Zachry or to any person named by him in writing, and in all such transactions Hutches will act solely as agent for Zachry." Paragraph 5 of said contract reads in part as follows: "Zachry agrees to sell through Hutches, as his agent, without disclosure of the agency, a minimum of two million pounds of seedling pecans to persons or corporations designated by Hutches * * * it being understood that this provision is made at the request of Hutches in order to fulfill Hutches' desire to supply pecans to certain customers to whom he has regularly sold pecans in past years. Hutches agrees to credit Zachry with all profits derived from such sales and Zachry to sustain all losses incurred, if any; * * *." The statement of facts reveal that appellant introduced in evidence a purported assignment executed by him to Hutches of all right, title and interest he had in and to this cause of action, dated the 15th day of July, 1947. Hutches did not testify that such cause of action was transferred and delivered to him from Zachry. Appellant Zachry did not testify that such transfer or assignment of said cause of action was delivered by him to the said Hutches; in fact, no one testified to its delivery. Be that as it may, the pleadings of Hutches do not contain any such transfer or assignment of the cause of action. This instrument, however, does disclose that appellee was correct while pleading in his cross action that appellant Zachry was the owner of the law suit when it was brought. This is also revealed in the contract referred to above. Under such conditions, we find that the trial court did not err in overruling appellant's plea of privilege because he voluntarily brought himself within the jurisdiction of the trial court when he filed his original suit through his agent Hutches. In the court's order overruling the plea it is stated thus: "The court is of the opinion that this suit was originally brought by the cross defendant, H. B. Zachry, and that he was in fact the plaintiff therein, using the name of Hutches for the purpose of suit, and that the cross action of cross plaintiff Robertson was seasonably filed, and that *Page 468 the cross defendant Zachry should defend said cross action in this cause above styled and numbered, and in Tarrant County, Texas." There is sufficient evidence to support such finding. While it is true that the purported sale of the cause of action was dated prior to the time the cross action was filed against appellant, such purported assignment was never disclosed to the court until the day of trial and then only the signature of appellant was undertaken to be proven, not its delivery. The court by its finding, supra, evidently gave no credence to such purported assignment, which he had a right to do under the record in this case; by attempting to prove the correctness of a signature affixed to an instrument does not prove delivery of same even though an attorney may be representing both the assignor and assignee in an action disconnected with the hearing in question. Under the record, no one could be criminally responsible for the incorrectness of the testimony surrounding the introduction of the purported assignment. Under Texas Rules of Civil Procedure, Rule 97, we find the record discloses sufficient evidence to connect the subject matter of the cross action with the subject matter of plaintiff's suit to the extent that it will prevent venue from lying in appellant's resident county. Both the pleadings in the cross action and the testimony of appellee Robertson are to the effect that when the contract was entered into by and between the agent of appellant and appellee, that it was strictly understood between the parties that appellant's agent, Hutches, would not attempt to buy any pecans from one Jim Ara because appellee Robertson had previously contracted for all of Ara's 1946 pecans and that it was from such crop that appellee would partially fulfill the contract made by and between him and appellant's agent, but that subsequently thereto Hutches did purchase the crop from Ara which prevented appellee from performing his contract with appellant. Finding no error, the judgment of the trial court in overruling the plea of privilege is affirmed.