Butterworth v. Kinsey

Wheeler, J. It is objected to the judgment, that the Court had not jurisdiction of the case, because it appears that the defendant is a non-resident, and there is no averment that he has property or effects within the jurisdiction of the Court; and we are referred to our Opinion in the case of Tulane v. McKee, (10 Tex. R. 335.) That Opinion, however, does not maintain the doctrine that, where the plaintiff is a resident of the State, it is necessary to aver that the defendant has property within it, though he be a non-resident. The contrary opinion was held in the case of McMullen v. Guest, (6 Tex. R. 275; and see Campbell v. Wilson, Id. 379.) In the case of Tulane v. McKee, all the parties to the suit, who were before the Court, were non-residents. The defendant Thomas had not been served, and the case stood as if he had not been named as a party to the suit. The writs of attachment and garnishment having been quashed, for the want of a sufficient bond, nothing remained to which the jurisdiction could attach. The present is a very different case. The residence of the plaintiff in the State is sufficient to support the jurisdiction of the Court. Every citizen is entitled to the process of the Courts to enforce his rights of action against non-residents. He may have service by publication; or where the defendant has property or rights and credits within the State, by attachment. (Ward v. Lathrop, 11 Tex. R. 287.) And we are not aware that it has been held necessary, to entitle the plaintiff to an attachment in such a case, that it should be averred in the petition, that the defendant has property or effects within the State. The fact of the defendant’s non-residence is made a [501] substantive ground of attachment; and the Statute does not annex the condition, nor is it perceived that it is required on general principles, that it should appear by averment, that the defendant has property within the jurisdiction of the Court, where the plaintiff’s residence is averred. We, however, are not asked, nor is it material now, to revise the ruling of the Court upon the sufficiency of the attachment. The objection to the jurisdiction of the Court, to adjudicate upon the merits of the plaintiff’s case, clearly is not tenable. Nor is it perceived that there is any force in the objections urged to the sufficiency of the petition. The agency, or trust relation, subsisting between the plaintiff and defendant, was not determined until the demand by the latter, of the attorney representing the parties, and the making of the settlement then effected ; and consequently the Statute of limitations had not previously commenced to run. The writing, alleged to have been then given by the defendant, contained an express promise to pay, in case it should thereafter appear that the defendant had agreed to allow the plaintiff more than the sum already paid ; and it is averred that he had so agreed, or undertaken. This was a promise to pay upon a condition, on the happening of which the promise became absolute ; and it is not pretended that the Statute had barred the right of action upon it when the suit was brought. But it is insisted that the petition does not aver performance by the plaintiff, of his contract and undertaking. And there would be force in the objection, if the averments of the petition did not show that which is equivalent to performance. It appears that what had been done, was freely accepted as performance. And it cannot be denied, that that operated as a full discharge of the plaintiff from his undertaking. It released Mm from any obligation he may have been under, to complete the collection of the money; and entitled him to immediate compensation for his services. And this appears to have been the understanding of the defendant, and is impliedly admitted in his promise to pay according to what should appear, or be [502] shown to have been his contract. Though there was not a literal performance of the contract, there was a waiver of performance, or that which was accepted as, and is, for the purposes of this suit, equivalent to, performance. It is further objected that the plaintiff cannot maintain this action upon the instrument given by'the defendant to the attorney, because the promise therein contained was not made to the plaintiff, nor is the instrument assigned to him. It might be a sufficient answer to the objection, that the suit is not brought upon this instrument alone, but upon the plaintiff’s whole case ; which is fully, specially and circumstantially stated in his petition. Besides, it is clear that the plaintiff is the person beneficially interested in the promise therein contained. The nominal payee was but a mere naked trustee. And repeated decisions of this Court have settled, that the person having the beneficial interest or equitable title in the contract, may maintain the action in his own name. We think it clear, that the petition discloses a valid subsisting cause of action, as between the plaintiff and defendant. And the plaintiff’s case is amply sustained by the evidence. We are of opinion that there is no error in the judgment, and that it be affirmed. Judgment affirmed.