Max Lindheim & Bro. v. Muschamp

Acker, Presiding Judge. Ben Muschamp entered into a written contract with Max Lindheim & Bro. to build a house for them in the town of Del Rio. To secure to Max Lindheim & Bro. the payment of such damage as might result to them should Muschamp fail to perform [35] the contract, Muschamp executed bond in the sum of two tnousand dollars, payable to Lindheim & Bro., with James Connell and A. L. Coffin as sureties thereon, conditioned that Muschamp should well and truly perform his contract, which was referred to in the condition of the bond. This suit was brought in the District Court of Val Verde County against Muschamp and the sureties on his bond, to recover the amount of the bond as liquidated damages for alleged breaches in the condition of the bond, or in the alternative to recover the sum of about six hundred dollars damages which, it was alleged, had been sustained by appellants in consequence of Muschamp’s failure to construct the building in compliance with the terms of his contract. The petition alleged that Muschamp and the sureties on his bond resided in the county of Kinney. Appellees pleaded in abatement their personal privilege of being sued in the county of their residence. The plea was sustained and the suit dismissed. From this judgment Lindheim & Bro. have appealed, and assign error upon the ruling of the court sustaining the plea in abatement and dismissing the suit. The sureties on the bond were liable only upon condition that their principal failed to perform his contract, and the bond is not made payable in any particular place. The engagement entered into by Muschamp to construct the building was one contract, and the bond was another, each separate and distinct from the other. The liability upon the latter was dependent entirely upon the performance or non-performance of the former. In order to give jurisdiction to the court in which' this suit was brought, the bond must have been made payable in Val Verde County. To entitle a plaintiff to sue in a county other than the residence of the defendant he must bring his case clearly within some exception named in the statute. Cohen v. Munson, 59 Texas, 237. The fact that Muschamp’s individual contract to construct the building was to be performed in Val Verde County did not give the court of that county jurisdiction of the suit brought upon the bond, payable at no specified place, and executed by persons residing in Kinney County at the time the suit was brought. We are of opinion that there is no error in the judgment of the court below, and that it should be affirmed. Affirmed. Adopted October 30, 1888.