It is settled that Subdivision 7 applies only in instances where the cause of action is clearly based upon fraud and that it does not apply where the fraud is just incidental to the main cause of action sued upon. Morgan v. Box, 449 S.W.2d 499 (Dallas, Tex.Civ.App., 1969, no writ hist.); Stegall v. Lytle, 360 S.W.2d 898 (San Antonio, Tex.Civ.App., 1962, no writ hist.)
In brief, Gillman and Windle pleaded a cause of action on behalf of Accent, not against it. A similar suit was brought in Morgan v. Box, 449 S.W.2d 499, (Tex.Civ.App. — Dallas 1969, no writ). In addressing the question of venue in the county where all or a part of the cause of action arose with respect to a private corporation, the Morgan court said it is essential that the cause of action be asserted against the corporation.
We find no evidence of a false representation of existing material fact. Where statements or representations are alleged to have been fraudulent but are in the nature of a promise or of an act to be performed in the future and not statements of existing facts, such statements cannot legally be said to be a fraudulent misrepresentation unless it is alleged and proved that at the time the statement or promise was made the person making the same did not intend to perform it. The mere failure to perform a promise is not of itself evidence of an intent not to perform. Rapid Transit Co. v. Smith, 98 Tex. 553, 86 S.W. 322, 335 (1905); Precision Motors v. Cornish, 413 S.W.2d 752, 756 (Tex.Civ.App. — Dallas 1967, writ ref'd n.r.e.); and Morgan v. Box, 449 S.W.2d 499, 504 (Tex.Civ.App. — Dallas 1969, no writ). In the instant case, the promise concerned a future act, that is, that Chancellors would not offer a limited membership in the future.
5. Plaintiff suffered damage thereby. K.W.S. Manufacturing Co., Inc. v. McMahon, 565 S.W.2d 368, 370-71 (Tex.Civ.App. — Waco 1978, writ ref'd n.r.e.); Morgan v. Box, 449 S.W.2d 499, 504 (Tex.Civ.App. — Dallas 1969, no writ); Precision Motors v. Cornish, 413 S.W.2d 752, 756 (Tex.Civ.App. — Dallas 1967, writ ref'd n.r.e.). We have examined the entire lengthy record, and we conclude that appellants failed to produce any evidence to prove a cause of action based upon fraud, either at common law or under the Insurance Code.
Quoted with approval in Custom Leasing, Inc. v. Texas Bank Trust Co. of Dallas, 516 S.W.2d 138 (Tex. 1974); Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487 (Tex. 1973). These elements, however, relate to alleged fraudulent statements concerning an existing fact. Where the statements said to have been fraudulent are in the nature of a promise of an act to be performed in the future such statement cannot be legally said to be a fraudulent misrepresentation unless it is alleged and proved that at the time the statement or promise was made the person making it did not intend to perform it. Morgan v. Box, 449 S.W.2d 499, 504 (Tex.Civ.App. — Dallas 1969, no writ). See also Precision Motors, Inc. v. English, 517 S.W.2d 371, 372 (Tex.Civ.App. — Beaumont 1974, no writ); Brooks v. Parr, 507 S.W.2d 818, 819 (Tex.Civ.App.-Amarillo 1974, no writ); Underwood v. Williams, 488 S.W.2d 515, 518 (Tex.Civ.App.-Fort Worth 1972, no writ).
In order to sustain venue under Subd. 7, it is essential to prove that actionable fraud was committed against the plaintiff in the county where the action is brought. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App. Dallas 1969, no writ). There is no evidence in the record to substantiate Bradford's claim that actionable fraud was committed in Marion County. On the contrary, Bradford testified that the alleged promise was made at Mr. Cole's home in Collin County. Bradford's contention that venue should be maintained in Marion County based upon his proof of the venue facts prescribed by Subd. 7 is overruled for the reason that there is no proof that any actionable fraud was committed in Marion County.
Although the record shows that appellee, Thomas, represented to appellants that the house could be built for $500,000, in order to establish liability for fraud appellants had the burden of further showing that the representation was false, that they relied upon such representation and that they suffered damages as a result of the representation. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App. Dallas 1969, no writ history); Banks v. Merritt, 537 S.W.2d 494 (Tex.Civ.App. Tyler 1976, no writ history). As we view the record, there is no evidence showing that the statement made by Thomas that the house could be constructed for $500,000, including architect's fees, etc., was false at the time it was made.
Plaintiff-Appellee had the burden of establishing this fact as a part of his cause of action for actionable fraud. See Precision Motors v. Cornish (Dallas, Tex.Civ.App., 1967) 413 S.W.2d 752, 756, NRE; Morgan v. Box (Dallas, Tex.Civ.App., 1969) 449 S.W.2d 499, 504, no writ; Citizens Standard Life Ins. Co. v. Gilley (Dallas, Tex.Civ.App., 1975) 521 S.W.2d 354, 356, no writ; Ryan Mortgage Investors v. Lehmann (Beaumont, Tex.Civ.App., 1976) 544 S.W.2d 456, 461, writ dismissed; 25 Tex.Jur.2d "Fraud and Deceit," Section 45, page 685. In the case at bar, the burden of proof was upon Plaintiff-Appellee to establish that the Defendants did not intend, at the time the representation was made, to perform the promise to give Plaintiff-Appellee the 5% ownership in KWS at the future time when the corporation shall have been formed.
In order to overcome a plea of privilege by relying on the fraud exception, a party must plead and prove the constituent elements of fraud. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App. Dallas 1969, no writ). There is neither pleading nor proof that Joc Oil made representations to Commercial that were false at the time the representations were made. Commercial alleged that Joc Oil falsely and fraudulently represented to plaintiff that the contract was to be carried out "to its full extent and spirit" that the defendant would carry on its operations in good faith; and that defendant would purchase all of its styrene tar from the plaintiff.
It remains for this Court to determine the nature of the suit solely from the facts alleged in the Plaintiff's petition, the rights asserted, and the relief sought. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App. Corpus Christi 1974, writ dism'd). It is the ultimate or dominant purpose of the suit which determines whether or not the suit falls under Subdivision 14. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App. Dallas 1969, no writ); Texaco, Inc. v. Gideon, 366 S.W.2d 628 (Tex.Civ.App. Austin 1963, no writ). The rule is also established that due to the mandatory nature of Subdivision 14, Courts have generally given this Subdivision a strict construction and have refused to apply the exception unless a suit is clearly within one or more of the four categories set out by the Subdivision. Bennett v. Langdeau, 362 S.W.2d 952 (Tex. 1962); Brown v. Gulf Television Company, supra; Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441 (1949).