Gulf Coast Aluminum Supply, Inc. v. Duke

389 S.W.2d 480

• Court: Court of Appeals of Texas
• Decided: April 15, 1965
• Docket: No. 118
• Status: Published

Opinion

SELLERS, Justice.

This is an appeal from an order overruling the plea of privilege filed by the appellant to be sued in Dallas County, Texas. The appellee controverted the plea by alleging venue under Subsections 5 and 7 of Article 1995.

The appellee’s suit is to recover damages for a breach of a written contract to install in a workmanlike manner aluminum siding on appellee’s house located at 1608 Timpson, Longview, Texas. The contract form furnished by appellant and duly executed by both parties so far as material, provides:

It is admitted that the aluminum was actually installed on the house of appellee at 1608 Timpson, Longview, Texas. Subsection 5 of Article 1995 provides:

Subsection 5. “Contract in writing.— If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.” (Emphasis added.)

Appellant’s assignment of error is that the contract wholly fails to allege the county where the work is to be performed and for this reason Subsection 5 has no application.

The facts are undisputed that 1608 Timpson, Longview, Texas, is the house and home of appellee and this court will take judicial notice that Longview is the county seat of Gregg County, Texas. North Texas Tank Company v. Pittman, Tex.Civ.App., 290 S.W.2d 724; Houston Heating & Air Conditioning, Inc. v. Semands, Tex.Civ.App., 318 S.W.2d 777.

Since the contract provides that the repairs are to be made on appellee’s house and that 1608 Timpson in Longview is in Gregg County and the home of appellee by the undisputed proof, Subsection 5 has been complied with and appellant’s contention is overruled. A case very similar on the facts is that of Butler, Williams & Jones v. Goodrich, Tex.Civ.App., 288 S.W.2d 887, where the written contract which referred to the place as “your residence below Navasota,” was sufficient to maintain venue in Waller County when the undisputed evidence placed such residence in Waller County.

In view of the foregoing, we likewise sustain the trial court’s finding that fraud was committed in Gregg County and venue is sustained under Subsection 7 of Article 1995.

The judgment of the trial court is affirmed.