DocketNumber: No. 14094
Citation Numbers: 224 S.W.2d 518
Judges: Young
Filed Date: 9/30/1949
Status: Precedential
Modified Date: 10/1/2021
This is a case of venue, following suit by Super-Cold Southwest Company against appellant in Dallas County on a promissory note in principal sum of $6,238 and conditional sale contract with mortgage; for recovery of title and possession of a Warren Display meat case and balance of purchase price of a Super-Cold case and other equipment. Reckaway filed plea of privilege to be sued in Brazoria County which was duly controverted on ground that the written note and contract were performable by appellant in Dallas County, and claiming venue under subd. 5, Art. 1995, Vernon’s Ann.Civ.St., in the county where suit was brought. Upon hearing to the court and conclusion of testimony, the plea was overruled with result of this appeal.
In its petition for debt and foreclosure (made part of controverting affidavit) ap-
Paragraphs four and five of defendant’s plea of privilege read as follows: “IV. Defendant denies that the promissory note, chattel mortgage, bill of sale set out and described in paragraphs 2 and 3 of plaintiff’s original petition, and upon which said petition is founded, and which are charged to have been executed by the defendant, were or either of them were executed and delivered by him or under his authority in such a manner as to be effective and valid in law. V. Defendant denies the alleged consideration for the promissory note, chattel mortgage and bill of sale sued on by the plaintiff, and set out in paragraphs 2 and 3 of the plaintiff’s original petition, and in this connection shows to the court that such instruments were executed and delivered with the distinct understanding and agreement by the plaintiff, plaintiff’s agent and the defendant, that such instruments should never and would not become effective until defendant should thereafter order in writing the equipment described in paragraph 2 of plaintiff’s petition, or defendant should accept delivery of said equipment so described; and that defendant has not since September 18th ordered said equipment in writing, nor has such equipment been tendered by delivery, nor has defendant accepted delivery of said equipment, and that .such instruments and' each of them are each and all without consideration.”
It is appellant’s contention that above sworn pleading constitutes specific denial of execution of the instruments sued upon; thereby fully complying with Rule 86, Texas Rules of Civil Procedure (Pleas of Privilege), which provides in part “that such plea shall not constitute a denial under oath of any allegations of plaintiff’s petition required to be denied under oath by Rule 93 (instruments in writing) unless specifically alleged in such plea.” The point, however, must be overruled. The quoted paragraphs of defendant’s plea of privilege plainly admit execution of the instruments in question, with the condition attached, however, that same were not to be effective until defendant should either (1) thereafter order in writing the equipment described or (2) accept delivery of the same. Appellant could well have raised the. issue of conditional delivery relative to. aforesaid note, mortgage, and contract by appropriate testimony to that effect, thereby tending to establish an incomplete, rather than completed and binding obligation. However, the particular testimony does not appear.- In such state of the record and where, as here, the instruments in suit are “no longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is presumed until the contrary is proved.” Art. 5932, sec. 16, Vernon’s Ann.St. (Negotiable instruments).
Appellee in original petition pleaded substantially the basic terms of its note
The further point is made that the note could not constitute an obligation performable in Dallas County because, from the face thereof, no payments were due thereon, until thirty days after installation of equipment, which installation, as plaintiff shows, was prevented by defendant. We regard the contention as more a matter for consideration on the merits of plaintiff’s cause of action than one properly determinable on this, a venue hearing.
The order under review is in all respects affirmed.