Page 813


209 S.W.2d 813


NEWSOM
v.
CONTINENTAL ROYALTY CO.


No. 2763.


Court of Civil Appeals of Texas. Waco.
March 18, 1948.

Appeal from District Court, Freestone County; Lex Smith, Judge.

Suit by Joel Newsom against the Continental Royalty Company to require the 
defendant to reissue stock certificate and to recover dividends. From a
judgment granting the defendant's plea of privilege requesting that the cause
be transferred to one of the district courts of Dallas county, the plaintiff
appeals.

Affirmed.

W. W. Mason, of Mexia, and Ellen Victery, of Teague, for appellant.

Storey, Sanders, Sherrill & Armstrong, of Dallas, for appellee.

LESTER, Chief Justice.

Mr. Joel Newsom and wife, on January 18, 1921, conveyed one-half of the mineral 
rights under their farm to The Continental Royalty Company for 727 shares of
stock in said corporation. The company issued and delivered to them a 
certificate evidencing their ownership of said stock, but sometime between the 
date it was issued and delivered and August, 1931, Mr. Newsom claims the stock
was lost, misplaced or destroyed. On June 3, 1947, he, as plaintiff, filed 
this suit against The Continental Royalty Company to require it to re-issue 
said certificate and to recover dividends alleged to be due him as the owner 
of said stock. The parties will be referred to as in the lower court.

The defendant filed its plea of privilege in due form, alleging that it was a
corporation organized and existing under and by virtue of the laws of the 
state of South Dakota and having its principal office in the city of Dallas, 
Dallas County, Texas, and requested the court to transfer the cause to one of
the district courts of said county.

Plaintiff filed his controverting affidavit, alleging that the plaintiff's 
cause of action, or a part thereof, arose in Freestone County, Texas, within
the meaning of the venue statute, Article 1995, subdivision 23, Vernon's Ann.
Civ.Statutes of this state, and alleging that the land for which the stock 
was given was located in Freestone county and that the transaction between the
plaintiff and the defendant which resulted in the issuing of the certificate 
of stock to the plaintiff was, from its inception to its final consummation,
had in Freestone county, Texas; that all the letters written by the plaintiff 
were written in Freestone county, Texas, and that all correspondence in reply 
thereto was received by the plaintiff in Freestone county.

Upon hearing before the court, the plea of privilege was sustained and the 
cause transferred to the District Court of Dallas county.

If plaintiff's cause of action, or a part thereof, arose in Freestone county,
then it was error on the part of the trial court in sustaining defendant's 
plea of privilege and transferring the case to the district court in Dallas
county.

The evidence shows that all the terms of the transaction between the plaintiff
and the defendant whereby the plaintiff became the owner of said stock were
fully and completely carried out in January, 1921, in that the deed was 
executed and delivered to the defendant by Newsom and his wife and the 
defendant, as per its agreement, issued and delivered to them a certificate 
evidencing their ownership of 727 shares of its corporate stock.

Plaintiff testified that in August, 1931, he had occasion to look for his
certificate of

Page 814

stock and was unable to find it, but that he did not inform the defendant of
its loss or make any demand of it to re-issue it until February of 1947.

Plaintiff cites in support of his position: Stone Fort Nat. Bank of Nacogdoches
v. Forbess, 126 Tex. 568, 91 S.W.2d 674; Transit Grain & Commission Co. v. 
Snapp, Tex.Civ.App., 148 S.W.2d 233; Panther Oil & Grease Mfg. Co. v. 
Schumaker, Tex. Civ.App., 166 S.W.2d 205; United States Pipe & Foundry Co. v. 
City of Waco, Tex. Civ.App., 100 S.W.2d 1099; Grayburg Oil Co. v. Powell, 118
Tex. 354, 15 S.W.2d 542. We have read all of these cases but we do not feel 
that they are in point with the facts of this case. It appears to us that the
facts surrounding the transaction between the parties in January, 1921, 
whereby the plaintiff became the owner of the stock in question are too far 
removed from the present situation to form the basis of any part of the cause 
of action now asserted by the plaintiff, so as to bring it within the terms of
subdivision 23 of the venue statute and permit him to maintain this suit in 
Freestone county. If the defendant had breached its contract by not issuing the
certificate at all, then the plaintiff would have been entitled to maintain a
suit in Freestone county for the purpose of requiring it to comply with its 
agreement, because his cause of action, or a part thereof, would have arisen 
in Freestone county; but simply because plaintiff lost his stock certificate 
through no fault of the defendant, he could not maintain, in the face of a plea
of privilege, a suit in Freestone county to require the defendant to re-issue 
the certificate in lieu of the one that it had already issued twenty-six years 
ago.

The nature of the plaintiff's claim for dividends was no more than one for 
debt, which the defendant had not obligated itself to pay in Freestone county 
as a result of the transaction had in said county between the parties in 
January, 1921, whereby the plaintiff became the owner of the stock as part of
the consideration for his land, nor had it in any other manner obligated 
itself to pay dividends on said stock in said county, and the facts 
surrounding that transaction cannot be used to form a connecting link with the
facts in the present suit so as to bring it within the purview of subdivision
23. Kinder & Keach v. Adams Nat. Bank of Devine, Tex.Civ.App., 184 S.W.2d 536.

Plaintiff contends that by reason of the defendant's president calling upon his
attorney in the city of Teague, Freestone county, Texas, and there denying 
plaintiff's ownership of said stock and stating that his company would refuse 
to comply with his demand, would confer jurisdiction upon the district court 
of the county of his residence. To this we cannot agree. Plaintiff's rights in
respect to venue had already been fixed and a denial of liability in such 
county would not give rise to plaintiff's cause of action, or a part thereof,
so as to permit him to maintain his suit in said county.

Finding no error in the judgment of the trial court, it is therefore affirmed.