
    WARNER v. GOHLMAN, LESTER & CO., Inc.
    
    (No. 984-4839.)
    Commission of Appeals of Texas, Section A.
    Oct. 26, 1927.
    1. Venue <&wkey;>7 — Suing- on note in H. county held proper, where note was payable ini H. county (Rev. St. 1925, art. 1995, subd. 5).
    Bringing suit on note in H. county, and overruling defendant’s plea of privilege under Rev. St 1925, art. 1995, subd. 5, to be sued in county of his residence, held proper, where note was made expressly payable in H. county.
    2. Action <&wkey;48(3) — To avoid multiplicity of suits,' action to surcharge account was properly embraced in suit on note given on account.
    . Where note was expressly made payable in H. county, and action thereon was properly brought there, to avoid multiplicity of suits it was proper to embrace in same suit a cause of action to surcharge defendant’s account as for an amount omitted in striking balance for which note was given.
    3. Courts <&wkey;d2l (4) — Amount of note in suit with amount sought to surcharge defendant’s account held sufficient to give district court jurisdiction.
    Where note was expressly made payable in H. county, and, to avoid multiplicity of suits, it was proper to embrace in suit on note action to surcharge defendant’s account with amount omitted in striking balance for which note was given, although note was for less than $500, the surcharge claim of $1,903.63 was sufficient to give district court jurisdiction.
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Action by Goldman, Lester & Co., Inc., against Pat Warner. The Court of Civil Appeals affirmed judgment overruling defendant’s plea of privilege, and certified a question to the Supreme Court. Question answered.
    Baker, Botts, Parker & Garwood and Winston Carter, all of Houston, for appellant.
    Cole, Cole & O’Connor, of Houston, for ap-pellee.
    
      
      Rehearing denied December 7, 1927.
    
   HARVEY, P. J.

In this ease the Court of Civil Appeals rendered judgment affirming the trial court’s judgment overruling the plea of privilege of the appellant, Pat Warner. A motion for rehearing is pending in the first-named court, and that court has submitted a certified question inquiring if their action in affirming the judgment of the trial court, is correct. The certificate contains a copy of the opinion rendered by the Court of Civil Appeals in affirming the judgment. The statement of the ease, as made therein, is as follows:

“Appellant, á resident of Lamar county, shipped his cotton during the season of 1924-L25 to appellee corporation, a cotton factor at Houston, sometimes contemporaneously drawing drafts upon it for the estimated value of the shipments. This cotton was subsequently resold by the factor; the proceeds being credited against the advance amounts so drawn by appellant on the general account thus originating between the two; on April 15, 1925, they balanced the account as it then stood on appellee’s books, and appellant, being at that time $590.11 in the red for the excess of these advancements over the proceeds from the sale of his cotton, gave appellee his_ note for that amount, expressly payable at Houston, in Harris county, five months later. Thereupon the appellee gave him the $590.11 credit for the note, carrying it as a bill receivable against him, and thereafter the cotton transactions between them continued as before. By December 1 of 1925, when the account was finally closed, in several different shipments, upon all of which advancements by draft had been' so drawn, appellant had shipped, and there had likewise been resold altogether, an additional 149 bales, upon which he was entitled to a- further credit of $1,400.47. In the meantime, however, on October 28, 1925, the appellee discovered that appellant had, on October 11, 1924, in sending it a 22-bale shipment of cotton, drawn a draft upon it for $3,304.10, which it had paid March 13, 1925 — a month before’the balancing of their accounts by the giving of the $590.11 note on April 15, 1925 — but which, because it had been abstracted from its office by an unfaithful employee, had not been taken into account in making that adjustment.
“Alleging the matters thus recited as facts, also that the $590.11 note bad since been reduced to a balance then due thereon of $322.90, but that neither such balance nor any part of the $3,304.10 draft had been paid, the appellee, by this suit in the district court .of Harris county, sought to surcharge appellant’s account as of April 15, 1925, with the omitted draft, after crediting thereon the $1,400.47 due him on the 149 bales, and to recover against him the resulting balance of $1,903.63, as well as the $322.60 on the note.
“Appellant filed a purely formal but proper plea of privilege to be sued in Lamar county, which the appellee controverted in an affidavit reiterating the stated substance of its pleadings, and claiming the venue as laid under subdivision 5 of R. S., art. 1995.
“.The trial court heard evidence on the venue issue thus raised, and overruled the plea. The appeal challenges that action.
“Appellant’s contention is that no cause of action properly laying the venue in the district' court of Harris county, as against his right to be sued' in bis home county, was alleged and proven within the meaning of subdivision 5 of article 1995, because the amount sought on the note was below the jurisdiction of that court, while the balance claimed upon the draft was a mere open account in no part represented by a contract in writing making performance there obligatory, and the two items could not be tacked together for jurisdictional purposes.
“The appellee counters with several propositions, the gist of its answer, however, being this:
“ ‘The trial court did not err in overruling appellant’s plea of privilege. While it is true that the balance due on the note, payable in Harris county, was below the jurisdiction of the district court, the balance of the indebtedness sued for, to wit, $1,903.63, was clearly within the jurisdiction of the district court, and should be looked to as a part of the amount sued for for the purpose of determining the jurisdiction of that court. The fact that the balance due on the $3,304.10 omitted draft was not itself payable in writing in Harris county, Tex., does not affect the question, since, to prevent a multiplicity of suits, the suit on the note drew to the district court of Harris county, Tex., venue .over both items.’ ”

The suit of the appellee embraces two causes of action: One arising from the face of the note sued on; the other arising from other sources, and involving the omitted draft item.

The note sued on being payable in Harris county, the suit was properly brought there, and, in order to avoid a multiplicity of suits, it was proper to embrace in the same suit the other cease of action. Middlebrook v. Bradley, 86 Tex. 706, 26 S. W. 935.

Although the note is for less than $500, the amount in controversy in the suit is such as to give the district court of said county jurisdiction.

The action of the Court of Civil Appeals in affirming the judgment of the trial court is correct, and we recommend that the question that is certified be so answered.

CURETON, C. J. The opinion of the Commission of Appeals answering the certified question is adopted, and ordered certified. 
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