Summary
The opinion addresses an appeal from an order sustaining a plea of privilege and transferring venue from El Paso County to Presidio County. The court held that the plaintiff's claimed share of profits from a joint venture or partnership did not constitute a specific identifiable fund subject to conversion, so the claim did not fall within the venue statute's trespass provision.
Topics
Practice areas
Questions Presented
- Whether Marston's claim concerning his share of the $13,050 discount was an action for conversion or trespass occurring in El Paso County so as to establish venue there under article 1995, subdivision 9.
- Whether Marston had a legal or equitable interest in specifically identifiable money received by Hill sufficient to support an action for conversion.
Holdings
- Marston could not maintain an action for conversion because he had no title to or enforceable claim against any specific portion of the money received by Hill. His alleged right was, at most, a contractual obligation to account and pay his share of the profits.
- Venue was properly transferred to Presidio County because Marston's claim was contractual rather than a trespass or conversion claim occurring in El Paso County.
Key quotations
“Money, though property which is often difficult to identify, it is well settled that an action of trover will lie for its conversion when such identification is possible, and there is an obligation to deliver the specific money in question.” (523)
“In the case at bar, Hill had the right to receive the money for all the parties, and Marston had no claim on any specific part thereof which he could enforce against Hill or any other party who might receive it.” (523)
Factual background
Hill, Marston, and Pinson agreed to share profits from arranging the sale of the Presidio Mines. The mine was ultimately sold in El Paso County for $200,000, and Hill received or directed payment of amounts including a $13,050 discount from the mine company. Marston claimed an interest in one-third of that amount and characterized Hill's failure to pay it as conversion. The trial court found that Hill had authority to receive the money for all parties and that Marston had no title to any specific portion of the funds.
Procedural history
Marston sued Hill concerning profits from the sale of the Presidio Mines, alleging that the parties' relationship arose from a joint adventure or partnership. Hill filed a plea of privilege seeking to be sued in Presidio County. The Forty-first District Court of El Paso County sustained the plea and ordered the venue changed; the Court of Civil Appeals affirmed.