Smith Tank & Equipment Co. v. Shaffer Tool Works Co.

439 S.W.2d 679, 1969 Tex. App. LEXIS 1962
CourtCourt of Appeals of Texas
DecidedMarch 13, 1969
DocketNo. 418
StatusPublished
Cited by3 cases

This text of 439 S.W.2d 679 (Smith Tank & Equipment Co. v. Shaffer Tool Works Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith Tank & Equipment Co. v. Shaffer Tool Works Co., 439 S.W.2d 679, 1969 Tex. App. LEXIS 1962 (Tex. Ct. App. 1969).

Opinion

DUNAGAN, Chief Justice.

This is a venue case involving Subdivisions 27 and 29a, Article 1995, Vernon’s Ann.Tex.Civ.St. The appeal is from an order sustaining the plea of privilege of the appellee, Shaffer Tool Works Company, to be sued in Harris County, Texas. Appellant, Smith Tank & Equipment Co., Inc., brought suit in the 114th District Court of Smith County, Texas, against the ap-pellee, Shaffer Tool Works Company, and Flo-Tronics, Inc., seeking to recover the sum of $5,317.60 for services rendered by it under a contract entered into on April 8, 1966, between appellant and Flo-Tronics. Flo-Tronics is a foreign corporation with its principal place of business in Minneapolis, Minnesota, and Shaffer Tool Works Company is a corporation duly incorporated under the laws of the State of California.

Both defendants filed pleas of privilege which were controverted by the appellant. The hearing thereon resulted in the trial court overruling the plea of privilege of Flo-Tronics and sustaining the plea of priv[680]*680ilege of the appellee, Shaffer Tool Works Company. Appellant excepted to the order sustaining Shaffer’s plea of privilege and has perfected its appeal to this court. Flo-Tronics did not appeal from the order overruling its plea of privilege.

Appellant has predicated its appeal on two Points of Error. It first contends that Shaffer is a necessary party. It argues that venue being lawfully maintainable as to Flo-Tronics in Smith County, it likewise is maintainable as to Shaffer under Exception 29a, Article 1995, V.T.C.S.

Hereafter appellant will be called “Smith Tank,” defendant-appellee will be called “Shaffer” and the other defendant in the trial below will be called “Flo-Tronics.”

The evidence adduced on the trial of this case shows that Flo-Tronics entered into a contract with Smith Tank on or about April 8, 1966, for Smith Tank to fabricate certain bins to be installed in Port Arthur, Texas, under a general contract being performed by Flo-Tronics. Smith Tank was to complete its work by June 30, 1966. Smith Tank fell behind schedule and the contract was amended to provide that Flo-Tronics should have the right at its option to remove the uncompleted work from Smith Tank and have it completed by another fabricator. If Flo-Tronics exercised its option, it was agreed that it would have all uncompleted items completed on a time and material basis and pay Smith Tank the difference between the time and material costs in the amount specified in the original purchase order. Pursuant to that amendment, Flo-Tronics did remove the work from Smith Tank and Shaffer was employed to complete the work. Shaffer also signed a letter dated September 24, 1966, presented to it in Harris County, Texas, by Smith Tank in connection with its being employed to complete Smith Tank’s work.

Shaffer did complete Smith Tank’s work and also did extra work at Flo-Tronics’ request, which was not covered under the terms of Shaffer’s original contract.

It is our opinion that this case comes within the rule laid down by the Texas Supreme Court in Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 775 (1944) wherein the court held:

“The rule is that where, under the exceptions contained in Article 1995, a suit is properly maintainable against one defendant in a county other than the county of his residence, and the plaintiff therein joins another as defendant and seeks to sustain venue as to him under Section 29a, such other defendant is a necessary party within the meaning of Section 29a if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties. * * * ” (Emphasis added.)

The presence of Shaffer as a party is not essential to Smith Tank’s right to a judgment against Flo-Tronics. The relief which Smith Tank seeks against Flo-Tronics is a money judgment. This relief may be had against Flo-Tronics alone. The absence of Shaffer as a party to the suit could not be a bar to a money judgment against Flo-Tronics. Therefore, Shaffer is not a necessary party to the suit within the meaning of Subdivision 29a. Cockburn Oil Corp. v. Newman, 244 S.W.2d 845, 847 (Tex.Civ.App., Eastland, 1951, n.w.h.); York Supply Company v. Dunigan Tool & Supply Company, 276 S.W.2d 317, 319 (Tex.Civ.App., Eastland, 1955, n.w.h.); Lewis Boggus Motors, Inc. v. Hill, 340 S.W.2d 957 (Tex.Civ.App., Waco, 1960, writ dism.).

Smith Tank next contends that the court erred in sustaining Shaffer’s plea of privilege because the cause of action or a part thereof against Shaffer arose in Smith County and therefore such cause of action is maintainable in Smith County under Exception 27 to Article 1995, V.T.C.S.

[681]*681The sole contention made by Smith Tank to sustain venue under Exception 27 to Article 1995 is that Smith Tank accepted an offer from Shaffer in Smith County, Texas. The evidence does not sustain this contention. The first contract involved in this case was the original purchase order dated April 8, 1966, from Flo-Tronics to Smith Tank, which required completion of the work covered thereby on or before June 30, 1966. Smith Tank admittedly fell behind schedule on this work. Therefore, at Flo-Tronics’ request, a written amendment of the purchase order was executed by Smith Tank and Flo-Tronics, giving Flo-Tronics the right to move the work from Smith Tank and have it done by another fabricator. Then, by a telephone conversation between Flo-Tronics and Smith Tank on September 19, 1966, and letter dated September 20, 1966, from Flo-Tronics to Smith Tank, Flo-Tronics exercised its right to remove the work from Smith Tank and instructed Smith Tank to deliver the materials to Shaffer for completion of the work by Shaffer. Flo-Tronics also had informed Smith Tank that Shaffer could fabricate the six powder bins, as required, at an approximate cost of $2,500.00 each. This was agreeable to Smith Tank.

Pursuant to Flo-Tronics’ instructions, Smith Tank delivered to Shaffer at Shaffer’s office in Seabrook, Harris County, Texas, the materials, the drawings and specifications and its (Smith Tank) letter of September 24, 1966, addressed to Shaffer at its office in Seabrook, Harris County, Texas. The letter listed all of the equipment, the material, the state of completion the material was in, all pertinent drawings fitrnished Smith Tank by Flo-Tronics, Smith Tank’s fabricator drawings, specifications and drawings for the six powder bins. It also provided a blank space for the insertion by Shaffer of the cost per unit or bin to be charged by Shaffer.

When these items were delivered to Shaffer in Harris County, the Shaffer employees with whom W. C. Smith, Jr., Vice-President of Smith Tank, met refused to sign Smith Tank’s letter or purchase order because they lacked authority to do so. There was no one present at the time at Shaffer’s place of business in Seabrook with the authority to complete and sign the letter. The Shaffer employees with whom Mr. Smith talked told him they would look over the material that he had delivered, along with the prints, and confirm the price that had been originally given. W. C. Smith, Jr.

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439 S.W.2d 679, 1969 Tex. App. LEXIS 1962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-tank-equipment-co-v-shaffer-tool-works-co-texapp-1969.