Wilson's Pharmacy, Inc. v. Behrens Drug Company ( 1973 )

WALKER, Justice.

This is a venue case. The principal question to be decided is whether, as an invariable rule, all venue facts relied upon by the plaintiff must be alleged in both the petition and the controverting plea.

The suit was brought against petitioners in McLennan County on a verified open account for a balance of $85,247.69 alleged to be due for merchandise sold. Petitioners filed pleas of privilege asserting their right to be sued in Harris County. Respondent then filed a controverting plea alleging that the sales were made pursuant to a written contract wherein petitioners agreed to make payment in Waco, Texas, and seeking to maintain venue in Mc-Lennan County under Subdivision 5 of Art. 1995, Vernon’s Ann.Tex.Civ.St. Evidence was introduced at the hearing on the pleas of privilege showing that an employee of petitioners had signed purchase orders to respondent stipulating that “this as well as all previous and all subsequent purchases is payable at your office in Waco, Texas.” The trial court overruled the pleas of privilege, and the Court of Civil Appeals affirmed. 481 S.W.2d 908.

The petition alleged that respondent sold and delivered to petitioners the goods, wares and merchandise as shown in the exhibits attached thereto, and that petitioners agreed to pay respondent on demand the amounts and charges indicated. There was no allegation of a written contract or that it provided for payment in Waco. In affirming the order of the trial court overruling the pleas of privilege, the Court of Civil Appeals observed that the essential facts of the claim, including an agreement by petitioners to pay for the goods delivered, were alleged in the petition. The court reasoned that respondent was entitled to elaborate on the claim in its controverting affidavit to establish the necessary venue facts.

We have jurisdiction of the case under Subdivision 2 of Art. 1728, V.A.T.S., because the holding mentioned above is in conflict with the decision of another Court of Civil Appeals in Reader’s Wholesale Distributors v. Trahan, Tex.Civ.App., 225 S.W.2d 459 (no writ), which was also a suit on a sworn account. The controverting plea there alleged for the first time that the goods, wares and merchandise were sold to the defendant upon written orders in which defendant had promised to pay in Houston. The trial court sustained the plea of privilege, and the Court of Civil Appeals affirmed. The reason for its holding was stated as follows:

The precise question presented in this appeal was decided by this court in the case of Elliot Finance Company v. Brown et al., Tex.Civ.App., 208 S.W.2d 622.

In that case, under a state of facts similar in all material respects to the facts in this case, this court overruled appellant’s plea of privilege and held that, under Rule 86, Texas Rules of Civil Procedure, in the absence of allegations in plaintiff’s original petition as to where the note sued on was payable, the allegations contained in plaintiff’s controverting affidavit could not be looked to in determining proper venue.

Under the provisions of Rule 86, Texas Rules of Civil Procedure, the controverting plea constitutes the plaintiff’s pleadings on the issue of venue. It should set out the essential venue facts relied upon by the plaintiff and must do so where the question is properly raised by special exceptions or by objections to the evidence. Leonard v. Maxwell, Tex. Sup., Tex. Civ. App., 365 S.W.2d 340; Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391. Petitioners insist that every essential venue fact must also be alleged in the petition. We do not agree.

The reasoning and holding of the Court in Trahan had its remote origin in the case of Witting v. Towns, Tex.Civ.App., 265 S. W. 410 (no writ), where the suit was to recover $1,700.00, alleged to be the unpaid purchase price for certain mineral rights and to foreclose an equitable vendor’s lien on the interest sold. In response to the plea of privilege, the plaintiff filed a controverting plea alleging certain fraudulent representations made by the defendant in the county of suit. Venue was asserted under Subdivision 7, which authorizes a suit for fraud to be brought in the county where the fraud was committed. In holding that the trial court should have sustained the plea of privilege, the court stated:

Plaintiff’s petition alleges only an action for the balance of the purchase money due for an interest in land situated in Caldwell County and seeks foreclosure of an equitable lien thereon. Nowhere does it allege any fraudulent representations by appellant, nor the commission of any fraud by him either in Caldwell County or elsewhere. An action in fraud is a distinct and entirely different proceeding from a suit for debt and foreclosure of a lien on land, if it is not an entirely different cause of action altogether. We do not think it was ever the intention of the Legislature in enacting the amendment to article 1903 of the R.S. of 1911, above mentioned, to authorize the party controverting a plea of privilege to change his cause of action by a controverting affidavit, in order to retain venue in the forum in which he files suit.

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Plaintiff’s right to recovery must depend upon his petition. His controverting plea, under the statute, serves only to join the issue as to venue under the plea of privilege and the petition then filed, and he cannot in such controverting -plea be heard to set up a new or different cause of action than that sued upon. The statute prescribes that he must set up the “fact or facts” relied upon to retain venue. Necessarily these facts must be such facts as would be admissible in evidence under his original or amended petition. Certainly he could not under a petition for debt and foreclosure of a lien to secure it prove a case of fraud, which was nowhere alleged.

This holding is entirely sound, but it has a rather limited application. The nature of the suit is an important venue fact under several subdivisions of Art. 1995, and the petition is the best and all sufficient evidence of the nature of the suit. See Oakland Motor Car Co. v. Jones, Tex.Civ.App., 29 S.W.2d 861 (mand. den., Jones v. Hickman, 121 Tex. 405, 48 S.W.2d 982). The character of the suit as disclosed by the petition cannot be changed for venue purposes by allegations in the controverting plea. Where the nature of the suit is an essential venue fact, therefore, this fact should appear in or from both the petition and the controverting plea. See also Casebolt v. Waldron, Tex. Civ.App., 160 S.W.2d 309 (no writ); Sayeg v. Federal Mortgage Co., Tex.Civ.App., 16 S.W.2d 567 (no writ).

As pointed out by the court in Witting the controverting plea serves to join issue as to venue under the plea of privilege and the petition on file. The issue is venue of the pending proceeding in which the plaintiff seeks to enforce rights and obtain relief as set out in the petition. Venue facts that are completely foreign to the cause of action alleged in the petition are not relevant, therefore, even though they might justify maintaining venue of another and different proceeding in the county of suit. For example, where the petition alleges a cause of action to recover on a particular promise, venue cannot be maintained under Subdivision 5 by alleging and proving that some other promise was in writing and performable in the county of suit. See Browne v. Heid Bros., Tex.Civ.App., 12 S. W.2d 587 (no writ). When the petition asserts a right to recover damages for one fraudulent representation, the fact that another fraudulent representation may have been made in the county of suit is not relevant to the issue of venue even though alleged in the controverting plea. See Austin v. Grissom-Robertson Stores, Tex. Civ.App., 32 S.W.2d 205 (wr. dis.).

There are a number of cases in which it has been said or held that all venue facts must be alleged in both the petition and the controverting plea. Cases such as Witting, Casebolt, Sayeg, Browne and Austin have been cited as supporting this general proposition, but the rule as so stated is too broad. As pointed out by Professor McDonald, “where the petition alleges the basic facts of the plaintiff’s claim, the plaintiff in his controverting affidavit, at least in the absence of any exception to the petition, may elaborate the claim to establish the necessary venue facts.” 1 McDonald, Texas Civil Practice, 1970 ed., § 4.49; 2 McDonald, idem, § 6.06. The controverting plea constitutes the plaintiff’s pleadings on the issue of venue, and no useful purpose will be served by a rule that every venue fact must also be alleged in the petition. In most cases the defendant’s attorney will be able to obtain from his client any information he may require in deciding whether to file a plea of privilege. The duplicate-pleading rule urged by petitioners will not insure, moreover, that defendant or his attorney receive early notice of the venue facts relied upon by the plaintiff, because the plaintiff and his attorney are not required to anticipate the filing of a plea of privilege. Any ef-sential venue facts omitted from the original petition can be alleged in an amended petition that may ordinarily be filed as a matter of right when the controverting plea is filed. See Rule 63, T.R.C.P.; Insurors Indemnity & Ins. Co. v. Brown, Tex. Civ.App., 172 S.W.2d 174 (wr. ref.). If the information contained in the controverting plea should ever cause the defendant to regret having filed a plea of privilege, he may easily rectify his situation in that respect by filing a waiver of the plea of privilege.

We hold that some venue facts may properly be alleged in the controverting plea without being set up in the petition. No attempt will be made to list all of the cases that have been incorrectly decided on the basis of a rule that every venue fact must be alleged in both the controverting plea and the petition, but two examples will be given. One of them is cited by Professor McDonald in support of his statement that “the rule that the venue ground must not be foreign to the petition on occasion has been given what seems an unduly technical construction.” 1 McDonald, idem, § 4.49. It is our opinion that in a suit on a promissory note, the fact that the note is payable in the county of suit may be alleged for the first and only time in the controverting plea. The holding to the contrary in Elliot Finance Co. v. Brown, Tex.Civ.App., 208 S.W.2d 622 (no writ), is disapproved. Where the petition alleges a suit against a corporation, the fact that the plaintiff resided in the county of suit when the cause of action arose may properly be alleged in the controverting plea even though that fact does not appear in the petition. The holding to the contrary in Price v. Murrell R. Tripp & Co., Tex.Civ.App., 268 S.W.2d 702 (no writ), is disapproved.

Turning now to the present case, it is settled that venue of a suit on an open account may be maintained under Subdivision 5 of Art. 1995 where the defendant has contracted in writing to pay for the purchases in the county of suit. See Burtis v. Butler Bros., 148 Tex. 543, 226 S.W. 2d 825, and authorities there cited. In our opinion the fact that petitioners contracted in writing to pay the items of the account in the county of suit was properly alleged for the first and only time in the controverting plea. The holding to the contrary in Reader’s Wholesale Distributors v. Trahan, Tex.Civ.App., 225 S.W.2d 459 (no writ), is disapproved.

Although petitioners argue to the contrary, we agree with the Court of Civil Appeals that the evidence, which is set out in its opinion, will support the conclusion that petitioners clothed their employee with apparent authority to sign the purchase orders in question.

The judgment of the Court of Civil Appeals is affirmed.

Dissenting opinion by DANIEL, J., joined by McGEE, J.