Opinion
No. 3403.
September 24, 1936.
Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.
Action by the J. R. Watkins Company against Alfred L. Webb and others. From an order sustaining defendants' pleas of privilege, plaintiff appeals.
Reversed and rendered.
The appellant brought this suit in Dallas county against Alfred L. Webb, W. H. Badgett, and T. L. McKenney, residents of Mitchell county.
The cause of action against Webb was for debt upon verified open account for goods, wares, and merchandise sold and delivered to him. As against Badgett and McKenney it was alleged they had promised and guaranteed payment of Webb's said indebtedness. Pleas of privilege filed by defendants were sustained, from which order this appeal is prosecuted.
In the controverting affidavit it was alleged Webb had promised to pay the indebtedness in Dallas county, but no evidence to that effect was offered.
It was further alleged Badgett and McKenney had promised and guaranteed in writing the payment at Winona, Minn., or at Dallas, Dallas county, Tex., at plaintiff's option, of the said indebtedness of Webb, wherefore the suit as to them was maintainable in Dallas county under subdivision 5 of article 1995, R.S., and the suit against Webb was maintainable there, under subdivision 29a of said article as added by Acts 1927, 1st Called Sess. c. 72, § 2 (Vernon's Ann.Civ.St. art. 1995 subd. 29a), because he was a necessary party to the suit against Badgett and McKenney.
The contract of Badgett and McKenney provides: "We hereby jointly and severally promise and guarantee, absolutely and unconditionally at all times, payment at Winona, Minnesota, or Dallas, Dallas County, Texas, at said company's option, of that indebtedness now, to-wit: December 24, 1931, owing from said purchaser to said company, the amount of which is Eight Hundred Sixteen and 79/100 ($816.79) Dollars, and also payment at Winona, Minnesota, or Dallas, Dallas County, Texas, at said company's option, of any further indebtedness to said company which may be thereafter incurred by or for said purchaser by reason of the sale to him from time to time, of goods, wares, merchandise and equipment, and the payment of carriage charges, if any," etc.
This contract was not signed by Webb.
The execution of the instrument was duly proven.
Recovery was sought of the indebtedness of $816.79, stated in the contract, and the further sum of $830.86 for purchases by Webb subsequent to the date of the contract.
Crane Crane, of Dallas, for appellant.
Thompson Barber, of Colorado, Tex., and D. D. Mahon, of Dallas, for appellees.
Appellees assert the contract of Badgett and McKenney simply guaranteed Webb would pay at Winona or Dallas. The contract does not have such limited meaning. Under its terms they "promised" payment by them at Winona or Dallas. Such is the fair interpretation of the contract. It imposes upon the sureties an obligation performable by them in Dallas at the option of the plaintiff. The optionable nature of the obligation did not render inapplicable the fifth section of the venue statute. As against Badgett and McKenney, the venue was properly laid in Dallas county. Pavlidis v. Bishop Babcock Sales Co. (Tex. Civ. App.) 41 S.W.2d 294; Merchants' Reciprocal Underwriters v. First Nat. Bank (Tex. Civ. App.) 192 S.W. 1098.
Webb was the party primarily liable and principal obligor upon the debt sued for and was a necessary party to the suit against his codefendants. Wood v. Canfield Paper Co., 117 Tex. 399, 5 S.W.2d 748.
The suit against him was therefore maintainable in Dallas county under subdivision 29a of the venue statute.
It is unnecessary to determine whether the pleas of privilege operated as a sworn denial of the verified account and cast upon plaintiff the burden of proving the account by evidence other than the statutory affidavit so as to show prima facie a cause of action against Webb upon the account. The contract itself established the indebtedness of $816.79 existing at the time the contract was executed and prima facie right of action thereon against Badgett and McKenney.
The pleas of privilege should have been overruled. Judgment to that effect will be here rendered.
Reversed and rendered.