Saunders v. First Nat. Bank of Ballinger

LITTLER, J. Appellant, Will R. Saunders, and defendant J. D. Bray, reside in Stephens county, and defendants C. L. Baker *134 and First National Bank reside in Runnels county. Defendant Bray sold to defendant Baker 14 bales of cotton for tbe sum of $1,324.05, and drew tbe following draft in payment therefor: “Ballinger, Texas, 12/2/1925. No. 341. On demand pay to tbe order of tbe First National Bank (88-258) of Ballinger thirteen hundred twenty-four and 05/100 dollars ($1,324.05). This draft is in payment of 14 bales of cotton this day sold to drawee by J. D. Bray. To O. L. Baker, at First National Bank, Ballinger, Texas. “[Signed] R. P. Bray. “Accepted: “[Signed] O. L. Baker.” Defendant Bray assigned said draft to tbe •appellant for valuable consideration,- and tbe appellant brought suit in Stephens county •against Bray, Baker, and tbe First National Bank, and afterward dismissed as to the ’bank. Defendant Baker filed a plea of privilege to be sued in Runnels county; appellant filed a controverting affidavit in support of bis right to bring suit in Stephens county. Tbe plea of privilege was tried before tbe court and judgment rendered in favor of defendant Baker, ordering tbe cause transferred to Runnels county, and this action of tbe court is now before this court for review. v Appellant relies upon tbe case of Hull et al. v. Guaranty State Bank, Overton (Tex. Civ. App.), 199 S. W. 1148, wherein tbe court used tbe following language: “Subdivision 4 of article 1830, Rev. St. 1911, •as amended by the acts of 1913, c. 177 (Vernon’s Ann. Civ. St. 1925, art. 1995), provides, ‘Where there are two or more defendants residing in different counties, in which case, a suit may be brought in any county where any one of the defendants resides: Provided, that the transfer or assignment of a note or chose of action shall not give any subsequent holder the right to institute suit on such note or chose of action in any other county or justice precinct than the county. or justice precinct in which such suit could have been prosecuted, if no assignment or transfer had been made.’ “If the liability of Hull was that of an assignor of a pre-existing debt, then clearly the suit could not have been maintained in Rusk county against the appellants merely because it ,was the place of Hull’s residence. It appears from the evidence that the drafts were drawn by Hull in favor of the bank, and the facts warranted the conclusion that they had been orally accepted by a duly authorized agent of the , drawees. It is well settled in this state that a verbal acceptance is good. Neumann v. Schroeder, 71 Tex. 81, 8 S. W. 632; Milmo National Bank v. Cobbs, 53 Tex. Civ. App. 1, 115 S. W. 345.” The facts in tbe case at bar are much different than in tbe case cited for in Hull et al. v. Guaranty State Bank, Overton, supra, tbe ■facts show that tbe bank bad phoned tbe agent of the maker of tbe draft and that be bad accepted same and promised-to pay, and upon these facts the court held that it was a new contract, and that venue would lie in either county. In tbe case at bar there was no acceptance by tbe defendant Baker in favor of appellant, but, after Baker bad accepted tbe draft, defendant Bray assigned tbe draft to appellant. If the appellant bad either written or phoned defendant Baker advising that be was owner of tbe draft, and Baker bad then accepted same, then this case would have been similar to the case of Hull v. Bank, supra, and tbe question before us would then be of a very different nature. Under tbe facts in this ease we are of tbe opinion that tbe draft in question comes strictly under tbe statute as to a chose of action and is controlled by tbe eases of First National Bank of Coleman v. Gates (Tex. Civ. App.) 213 S. W. 720; Hemphill v. Brock (Tex. Civ. App.) 267 S. W. 281; Lanciger et al. v. Smith (Tex. Civ. App.) 229 S. W. 909; Richardson v. D. S. Cage Co. et al., 113 Tex. 152, 252 S. W. 747. We conclude that defendant Bray could not have maintained suit against defendant Baker in Stephens county. Hence it must follow that appellant would have no better standing in the courts of Stephens county than would bis assignor. We therefore conclude that tbe court did not err in transferring tbe cause to Runnels county. Judgment affirmed.