First Nat. Bank of Coleman v. Martin & Co.

RICE, J. (after stating the facts as above). Appellant urges that the court erred in.peremptorily instructing a verdict in favor of appellees on their plea of privilege, and insists that the evidence showed that it was a bona fide purchaser for value of the draft sued upon, and the cause of action held by Martin & Co. against the defendants Gohl-.man, Lester & Co., and that Martin & Co. were residents of Coleman county at the time of the institution of this suit; for which reason they assert said suit was properly brought against all of the defendants in said county. It is contended by appellees Gohlman, Lester & Co., however, that this suit cannot be maintained against them in Coleman county, for the reason that the transaction out of which it is alleged to have arisen was a tort, and that plaintiff’s claim is one sounding in damages for tort, and that therefore they were improperly joined as parties defendant with Martin & Co. But appellant, while denying that this is a suit based upon tort, insists that, even if it were, it had the right to waive the tort and bring its suit for the value of said cotton, which it claims it did, *1031 and that hence the rule invoked against it does not apply. [1] We think it is clear in this case that the cause of action is based upon a tort, as shown by the pleadings. The suit was not brought to recover the proceeds of th'e cotton alleged to have been converted, nor was it brought for the value thereof at the time of its alleged conversion; but it was brought to recover the highest value of the cotton during the cotton season of 1912, which may have been greatly in excess of the proceeds realized from its sale, or in excess of its actual value at the time of the alleged conversion, thereby making it a suit for damages, the amount of which was wholly and entirely uncertain; so that appellant did not waive the tort, but, on the contrary, relied upon it for a recovery. See Gould v. Baker, 12 Tex. Civ. App. 6G9, 35 S. W. 708, wherein,, quoting from Elwell v. Martin, 32 Vt. 217, it is said: “Where property hag been tortiously taken and converted into money, the plaintiff may sue in tort, or he may waive the tort and sue in assumpsit. When it is said that he waives the tort, it is not meant that he does any act or makes any averment in his declaration to that effect. He simply brings assumpsit instead of trespass or trover, and thereby foregoes the advantage he would have if he sued tortwise to claim higher or exemplary damages, and to proceed against the person of the defendant.” [2] So that, if the cause of action is one sounding in damages far a tort, and the plaintiff has seen proper to sue upon the tort, as we think in this case it has done, then the question arises, admitting that the cause of action based thereon is the subject of assignment (see Ry. Co. v. Freeman, 57 Tex. 156), as to whether or not such claim was assigned and its payment guaranteed by Martin & Co. in such manner as to render ap-pellees Gohlman, Lester & Go., liable to be sued thereon as joint defendants with Martin & Co. in a county other than their residence as against their plea of privilege. It is true that in Provident Nat’l Bank v. Hartnett Co., 100 Tex. 214, 97 S. W. 689, it was held that the mere drawing and sale of a draft to a bank, with a statement thereto attached showing an indebtedness upon a contract, would operate as a transfer and guaranty of the payment of such indebtedness, subjecting the drawer and payee thereof to suit by the purchaser in the county of the former’s residence;' but we do not think it follows that it ought to be held that, where the suit is based upon a tort, or is one for un-liquidated damages, this rule would obtain, because it does not fall within the reason of the rule as announced in the case above cited. Indeed, it seems to be intimated in that case that such would not be the rule where the cause of action was, as here, for unliquidated damages. The transaction under consideration in the ease above referred to was one frequently and commonly occurring in com mereial dealings, and seems to be based upon this idea. In the present case, there was no transfer or guaranty of said claim for damages, unless it arose out of the transaction itself. In two of the cases referred to by appellant to support its contention, to wit, Kenedy Town & Development Co. v. First Natl. Bank, 136 S. W. 558, and Leahy v. Ortiz et al., 8S Tex. Civ. App. 314, 85 S. W. 824, there were not only transfers of the account so assigned, but written guaranties thereof as well. And in the case of Vaughn v. Farmers’ & Merchants’ Nat’l Bank of Alvord et al., 126 S. W. 690, the transaction is not fully stated, so that it cannot be determined whether or not there was a written transfer and guaranty therein of the claim. So far as we are advised, the exact question here presented is an open one, never having been passed upon by our courts; but we think, in the absence of an express guaranty of payment of the account in the present case, that none existed, and that therefore there was no privity between the defendants Martin & Co. and Gohlman, Lester & Co., for which reason we think that they were not liable on the alleged guaranty, and therefore Gohlman, Lester & Co.’s plea of privilege was properly sustained. The other assignments in appellant’s brief have been fully considered by us, but are not deemed well taken, and hence are overruled. Finding no error in the record, the judgment of the court below is affirmed. Affirmed.