Drummond v. Allen Nat. Bank

TALIAFERRO, J. This suit originated in the county court -of Jackson county. The Allen National Bank of Edna, Tex., sued appellant J. H. Drummond and J. O. B. Young, alleging that Young was a resident of Jackson county and Drummond a resident of Jefferson county. The basis of the action was an account or claim of Young against Drum-mond which it was alleged had been, for a valuable consideration, assigned to the plaintiff bank. A draft was drawn by Young upon Drummond with the account attached. The draft was paid by the bank to Young, but upon presentation Drummond refused to accept or pay the draft. The bank sued both parties, claiming that venue of the suit, as to both defendants, was fixed in Jackson county by section 4 of article 1194 of the Revised Statutes. Defendant Drummond filed a plea of privilege with statutory allegations, and further alleged in said plea that there was a misjoinder of parties defendant for the purpose of attempting fraudulently to confer jurisdiction upon the county court of Jackson county over the person of defendant Drummond, “in that the alleged transfer and sale by said J. O. B. Young and the draft drawn upon defendant, Drummond, and the alleged guaranty of Young to the bank, were simulated and fraudulent and made for the purpose of acquiring jurisdiction,” etc. Defendant Drum-mond, upon the merits of the case, among other things pleaded estoppel. Appellee Young specially excepted to the latter portion of defendant Drummond’s plea of privilege, wherein it was alleged that plaintiff and defendant Young fraudulently acted together for the purpose of enabling plaintiff to maintain its action in Jackson county, because said plea failed to allege any fact or facts tending to show such fraud. Defendant Young also specially excepted to that portion of defendant Drummond’s answer wherein he alleged that defendant Young was estopped from prosecuting the action upon the ground that said answer failed to allege any facts sufficient to constitute an estoppel. [1] Both of the above special exceptions were by the trial court sustained. Defendant [740] Drummond’s plea of privilege was overruled. Tlie court having sustained the special exceptions thereto, and as no statement of facts accompanies the record, we must presume that the question of estoppel and the allegations of fraudulent assignment were eliminated, and defendant, Drummond, was denied the right to support those allegations with proof. [2, 3] Appellant contends in the propositions under his first assignment of error that the questions of fraud and simulated assignment were properly a part of his plea of privilege, and that, in order to raise those issues, it was sufficient for him to allege that the transfer and assignment were fictitious or fraudulent, and made for the sole purpose of conferring upon the court of Jackson county jurisdiction over the person of defendant, Drummond, a resident of Jefferson county. In this contention we agree with the appellant. A simple allegation of fact meets the requirement of pleading under the Texas system. It is not only not necessary, it is not proper, to plead the evidence. When appellant set up in his answer that the transfer or assignment of the claim against him was fraudulent or fictitious, he was alleging a fact susceptible of proof, and he should not have been required to allege the evidence by which he expected to make the proof. The case of Pearce v. Wallis, Landis & Co., 124 S. W. 496, cited by appellant, is very much in point with this case. In that case the court was held to have correctly refused to consider a plea of privilege or to admit evidence upon the question of fraud because the plea of privilege did not in specific terms charge that the transfer was fraudulent or simulated. Therefore we believe the court erred in sustaining the exception to appellant’s plea of privilege. The exception should have been overruled and proof of the fraudulent assignment should have been heard upon the plea. The appellant’s first assignment of error will be sustained. [4] The appellant’s second assignment of error attacks the action of the trial court in sustaining the special exception to fhat portion of appellant’s answer claiming that defendant Young was estopped from rescinding the contract. The portion of the answer to which the exception was sustained is as follows: “That defendant Young had waived all right, if any he had, to rescind the contract of purchase of the rice, the purchase price of which is herein sought to be recovered, because this defendant says that the said J. O. ®. Young, after the payment to this defendant of the purchase price agreed upon for the said rice, was notified by this defendant, when complaint was made by the said J. O. B. Young, that the rice delivered was, as he claims, not in accordance with the terms of the contract of purchase, to ship the said rice at the expense of this defendant to the Broussard rice mill at El Campo; there to be held for disposal on account of this defendant and sold; this defendant agreeing to refund to the said J. O. B. Young the differ.ence, if any, which it should be determined after an inspection of said rice by competent persons there was between the price paid by the said J. O. B. Young to this defendant for said rice and its real market value; but that the defendant Young refused to ship the said rice as directed, thereby waiving his right to claim damages against this defendant.” [5, 6] These allegations do not present a state of facts upon which estoppel can be predicated, and therefore the special exception was properly sustained. It is true, as contended by appellant under his proposition to this assignment, that the purchaser cannot keep the goods and afterwards recover the full purchase price paid, but this defense cannot be reached by plea of estoppel. None of the elements of estoppel appear in defendant’s answer. The second assignment is. overruled. The judgment is reversed and the cause remanded.