Adams v. Skinner

HUGHES, Justice. This appeal is from an order overruling the plea of privilege of appellant, George B. Adams, to .be .sued in Brazos County, the county of his residence. The suit filed against him by appellee-, Dean Skinner, was for breach of • contract-. . : Appellant’s first point is that ap-pellee’s controverting ■ plea, “does not set out specifically the groundg relied upon to confer venue of such cause on the court where the cause is pending.” We quote from- such affidavit: “This' suit is básed upon a written contract executed by the defendant with the' Plaintiff which is performable in Rockdale, Milam County, .Texas. .The defendant expressly promised, contracted and agreed to perform and ■ do the work involved in this, litigation at Rockdale in Milam County, Texas. As is shown in plaintiff’s petition,. the plaintiff was under contract, to - do certain work .and perform certain labor for the City qf Rockdale in Milam County, Texas, and [418] 1 thereupon -a portion of said work was - • sub-let • to the defendant and ■ the de- ■. fendant did enter into a contract with , the plaintiff to do and perform certain portions of said work "in the city of : Rockdalej' Milam County, Texas,’ ; Wherefore, the■■ defendant became.-. bound' and-, obligated ..to do and ¡.per-. ■ •'■form such--work but wholly failed-.and -refused, to do so: This is a suit com- • i ing .clearly within-the! exception to ■■ exclusive -venue ■ mentioned in Section- ., • 5,-Article 1995 of .the revised'Statute ■ of - Texas [.Vernon’s ’ Ann.Civ.-St. art,- . 1995, subd. 5], and for. which reason-..: the same should be overruled. “Reference is here made to plain'tiff’s original petition -bn.-file herein and same is made a part hereof for a. complete statement of the plaintiff’s cause of action and' of the relief sought.” The written contract referred to in the affidavit Was introducéd in-evidence- without obj ection.' ’''- It' conforms to ■ the aver-ments of- the affidavit concerning it. • . Our conclusion: is that-the-pleading wa£ sufficient and we overrule appellant’s'first point. ' The second point -is that it was not hlleged in appellee’s original -petition that the contract" sued upon -was 'in-‘writing. - The petition alleged that the terms of the contract were “as will - more fully, appear from the contract. made and entered, into by and between” the parties. A further allegation was that if appellee obtained the prime contract with the city that: ■ “* * * rágjj plaintiff was to award or sublet certain portions thereof to the defendant at the price and oh the terms theretofore-agréed on between the plaintiff and-the defendant and - as set forth in the defendant’s written proposal to the plaintiff relative to the matter.” In our opinion these allegations sufficiently'-allege ¿"written‘undertaking on the part of appellant. The controverting áffidávit from which we have'quoted clearly alleged a written contract and no objection, to the pleadings or to introduction of the contract in evidence was made on the hearing. Under these circumstances we hold that the deficiency, if any, in the original petition was waived and that the pertinent venue issues were tried by consent. Rules 90,- 67, Texas Rules of -Civil Procedure'. An excellent opinion by Chief Justice Atwood McDonald of the Fort Worth Court of Civil Appeals sustaining these holdings is, found in Dillingham v. Associated Employers Lloyds, Tex.Civ.App., 233 S.W.2d 191. No error- appearing the judgment of the Trial Court is affirmed. Affirmed.