Mahon v. Cotton , 13 Tex. Civ. App. 239 ( 1896 )

Appellee sued appellant in the County Court of Victoria County to recover rents for a hotel in Port Lavaca, Calhoun County. The residence of appellant was alleged to be in Calhoun County, and, in order to fix venue in Victoria County, the petition alleged that appellant had rented the property under a written contract from the first of July, 1893, until December 31, 1893, at a stipulated monthly rent; that, by the contract, appellant agreed to pay the rent in Victoria County; and that upon the expiration of that term, appellant had held on for another period of six months, and had thereby become liable under the terms of the lease for the preceding term. The defendant pleaded his privilege to be sued in the county of his residence. The court below held the plea not to be well taken, and a judgment was rendered for plaintiff. The ground upon which the suit was held to be well brought in Victoria County was, that the original lease provided for payment of the rent there, and that defendant, by holding over, renewed that contract. It is well settled that where, with the express or tacit consent of the landlord, the tenant holds over after the expiration of his term, he is deemed to hold according to the terms of the original lease. San Antonio v. French, 80 Tex. 575 [80 Tex. 575].

But this is only an implication which arises from the conduct of the parties. The law implies, or the courts infer, a contract the terms of which are the same as those of the lease which has expired, but this is not a contract in writing. It is nothing but an implied undertaking. The exception which is relied on to the general rule requiring suits to be brought in the county of the defendant's residence exists "where a person has contracted in writing to perform an obligation in a particular county." Rev. Stats., art. 1194, subd. 5. The obligation here sued on was not contracted in writing, but arose by implication from the acquiescence of the parties, the former written contract being consulted simply to ascertain the terms under which the tenant continues to hold. While the new contract is, in its obligations, the same as the original, it is not in writing. One who sues the defendant in another county than in that in which he resides, must bring his case clearly within one of the exceptions to the general rule. Cohen v. Munson, 59 Tex. 237.

The facts are all admitted in the plaintiff's pleading and the plea of privilege should have been sustained, and the suit dismissed. As no other ground to fix venue in Victoria County is relied on, the judgment will be reversed and the suit dismissed.

Reversed and dismissed.