This is a plea of privilege case.
J. C. Broaddus, Jr., sued Harry Newton, Inc. and Commonweatlth Insurance Company of New York, in the District Court of Milam County, seeking a recovery of $1,323.27 as the balance due for material and services performed on a State of Texas — Texas Highway Department Project known as F-FG 191(12), Milam County, to W.S. Luckie, Inc., a sub-contractor, and attorney's fees.
We have not been favored with a brief by appellee. The defendants filed pleas of privilege and subject to such, general denials.
The pleas of privilege were controverted and a hearing was had and such pleas were overruled.
The appeal is predicated on two points, to-wit:
*Page 951"The trial court erred in overruling the pleas of privilege of the appellants inasmuch as there is no evidence to show that the appellee was entitled to the benefits of Article 5160.
"The trial court erred in holding that proof of notices under Article 5160
was not necessary on the theory that such notices were not venue facts."
The allegation of plaintiff's petition and of the controverting plea have been summarized by appellant as follows:
"(a) That defendant-appellant Harry Newton, Inc., was the prime or general contractor on a Texas Highway department road building project in Milam County, Texas, and that the defendant-appellant Commonwealth Insurance Company of New York furnished the payment bond for Newton pursuant to Article 5160 of the Revised Civil Statutes of the State of Texas.
"(B) That Broaddus furnished material and services to W. S. Luckie, Inc., who was a sub-contractor of appellant Newton on the project, and that W. S. Luckie, Inc., had not paid Broaddus for such services.
"(c) That 'by reason of said failure and refusal, plaintiff, on or about the 15th day of January, 1963, by affidavit, notified Harry Newton, Inc., and defendant, Commonwealth Insurance Company of New York, of its claim as aforesaid, said notification being given pursuant to the provisions of Article 5160 et seq., Revised Civil Statutes of the State of Texas, 1925, as amended.' and
"(d) That venue is maintainable in Milam County, Texas, under the provisions of Section G. of said Article 5160, which reads as follows:
"`All suits instituted under the provisions of this act shall be brought in a court of competent jurisdiction in the county in which the project or work, or any part thereof, is situated.'
"No other exception to the right of exclusive venue in the county of one's residence was raised by the appellee. The truth of the matters concerning residence of the appellants in their pleas of privilege was not controverted in any particular. Upon the venue hearing counsel for all parties stipulated that the Texas Highway Department project in question was known as a Milam County project; that the work of Broaddus was performed in Milam County, Texas; that Harry Newton, Inc., was the prime or general contractor; and that pursuant to Article 5160, Revised Civil Statutes of Texas, the Commonwealth Insurance Company of New York furnished a payment bond for the project."
Appellee testified that he had a contract with Luckie, a sub-contractor of Newton, Inc., with which concern he had no contract; that his contract for labor and materials was made with Luckie alone, and that he had performed his final work three or four weeks prior to September 28, 1962, the date of the final estimate.
There is no contention that appellee notified appellants of an asserted claim under Article 5160. In fact the evidence is that he did not, and the trial court so found, but concluded that proof of such notice is not necessary because such were not venue facts.
The burden was on the plaintiff, appellee, to establish the determinative venue facts. McDonald, Vol. 1, Texas Civil Practice, 417; Leonard v. Maxwell, 365 S.W.2d 340, Supreme Court.
The question of venue facts with regard to Article 5160 appears to be of first impression.
The article is divided into seven major sections numbered A through G. Section A provides for bonds between the prime contractor and the authority ordering construction. Subsection B requires the type of bond involved in this litigation of the prime contractor, for the protection of all claimants supplying labor and material.
Section B deals with the 'rights of persons furnishing labor or material. Notice required.' providing that: a claimant who: (1) has furnished labor or material in the *Page 952 prosecution of the work, and (2) has not been paid in full therefor, 'shall, have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the clim as herein required, to sue the principal and the surety * * *;' provided: (a) notice required has been filing of the claim as herein required, to sue
If a claimant cannot prove the conditions (notices) the suit is not instituted under the provisions of the act. General Casualty Company of America v. United States, 5 Cir.,205 F.2d 753.
The judgment of the trial court is reversed and the cause remanded to the trial court with instructions to transfer the cause to the counties of the residence of the appellants.
Reversed and remanded with instructions.