*1 Tex.) ALFALFA CO. v. H. H. WATSON GROWERS’ EXCHANGE !.w.) (300 county is the construc tained This whore defendant has the Loará the court. contracted writing perform obligation. Bailey U. S. like section 109, Fidelity Guaranty Co., N. Neb. permit- Venue 5. venue statute —Under Commission, 237; State v. Industrial ting tract, place suit of con- 1916D, 434, 299, L. R. A. St. N. E. Ohio plainly 944, 1917D, designated writing 1925, 1995, Ann. Cas. Johansen (Rev. St. art. 5). Stockyards 328, subd. 156 N. W. 99 Neb. Union 1925, 1995, 5, 511. Under Rev. art. St. subd. thorizing case, suit to be maintained There is no need- to remand county, modified, and, defendant has contracted in accordingly perform county, modified, It modified so will be affirmed. designated plainly per compensation of $11.54 to allow so as during weeks, $323.- credits of week less «&wkey;7 pay paid; appellees cost of Venue cannot be conferred on —Venue (Rev. doubtful construction of contract appeal. St. 1925, 1995, 5). art. subd. 1995, 5, 1925, Under Rev. St. art. subd. ven- ue cannot ful conferred on a strained doubt- inference or construction a contract. GROW WATSON CO. v. ALFALFA H. H. ERS’ EXCHANGE. County from Dallas Court at Law Eastland. of Texas. Civil Court Cramer, Judge. Wm. M. No. Sept. 9, 1927. Company against the I-I. I-I. Suit Watson 18, Denied Nov. Exchange. the Alfalfa order Growers’ From sustaining plea privilege, defendant’s <&wkey;lll plea privi- — Pleading opposing I. plaintiff appeals. Affirmed. probably plaintiff lege, establishing need facts cognizable where George Sergeant, Dallas, appellant. for brought. suit Townsend, appellee. J.N. for hearing plea privilege, On clearly prove maintain suit must county quires PANNILL, plain- C. J. The brought, this it is where brought tiff against appellee the court below and suit proof of facts "establish alleged for the county of the forum. a ease of a breach contract. in due t&wkey;9l2 appeal Appeal and error from presented plea privilege. —On time and form sustaining privilege, appellate plea of order court Appellant controverting affidavit, filed a .seek- plea was sustained assume ing to sustain the the suit in Dal- plaintiff’s testimony disbelieved" county, subdivision art. constituting prima facie case. 1925, prescribing R. S. venue in civil cases. appeal sustaining plea from an On order .of The subdivision is the .same as .subdivision appellate privilege, refused to assume that previous codification, 5 of the and author- because the had been sustained the court had a suit izes be maintained in a not believed defendant’s uncorroborat- has the defendant contracted in testimony, which to establish was sufficient ed prima in such facie case. county. Upon of the issue thus On joined, the trial sustained ^eourt appeal <§=^7 Venue from order —Written of contract to deliver held not at prosecuted. point by buyer within ter- limited record, The material facts shown ritory. substance, are: That in telegrams seller, by to deliver respective parties sent any point territory, designated by buyer within 10, 1925, April April limited written sold carloads ship hay city instructions that to certain points, by to Texas common delivered territory of contract. it was any point <&wkey;*7Buyer’s 4. Venue written Texas des- in- structions, designating place delivery, ignated which was east of a part of contract so as to authorize suit in running line north and south from Amarillo "county designated, (Rev. under venue statute through Big Spring Devine, IS25, 5). St. subd. art. purchase by appellant was confirmed seller contracted to deliver April 13th, a letter dated designated by any point buyer within limited confirmation stated the number of cars as buyer’s territory, April appellee replied 15th 15. letter, part of contract held not authorize calling attention sold,‘instead bringing was in- fact that 20 cars had been made, structed to 1995, under Rev. St. art. 5, providing informing appellant subd. that suit be main- 5 cars other oases KEY-NUMBER Indexes *2 (Tex. 300 REPORTER SOUTH WESTERN
200
charged,.
previously thereto,
shipped
ash-
not
and
included in the
con-
had been
part
thereof,
supported
ing
shipping
are no
for the remain-
unless
instructions
by
immediately. Upon
by
re-
additional
consideration.
it
But
der of cars
wire
1925,ap-
April 17,
letter,
ceipt
not believed that
and
within
evidenced'
tainly contemplated
letters of
the
confirmation
and on
of this-
ship
shipping
appellee
pellant
to
instructions
to
this case come
wired instructions
shipped
original contract,'
hay
5
this rule. The
as
the
cars
Dallas. For
all
.to
by
by
of
the
bill
drawn with
drafts were
lading
that
there would be
attached.
for the cars
part
noticed,
ques
shipping
readily
added as a
the sole
As
be
will
instructions,
that, upon receipt
and
arising
of such
stated is wheth
under the facts
hay
the
respective telegrams
obligation
of the
would
and letters creat
er the
ed an
.be
by
appellee
appellant,
part
made
the
destination selected
of
the
to
any
that
such
instructions
in Dal and
to
complete.
received the
was
were
contract
appellant
the
that
asserts
Seley Williams, supra. We
v.
therefore
to
evidence showed an
concluded that
are
county. Appellee’s posi
instructions
the
the
tion
regarded
created,
as a
and
of the
that no such
above,
that
sidered
evidence detailed
con-
complete
the
when
upon the
that the contract
together,
perform-
shows a contract
telegrams;
exchange
that
the letters
Dallas
able in
there
instructions
confirmation and
after
and that the
[1,2] Appellant’s
as to
'.contract;
case
venue
the
are
by
messages
made
the introduction of
by
out
the
origi
made
the
contract
letters
referred to. These were
above
per
telegrams
does not fix
nal
formance
by
by
testimony
agent
ap
the
of an
identified
pellant. Appellee
insists that the action
appellant
to. The
the statute adverted
changing
the trial court in
the
should
by
Supreme
upon the decisions
the
relies
upon
upheld
trial
that
the
the
the
Mayhall v. Lubbock
Court such as Scott &
testimony
discredited
Co.,
Tex.
252 W.
&
S.
Grain
164;
Coal
sending
telegram instructing
as to the
of the
Grain Co.,
Bros.
Patterson
Smith
shipment of
Dallas.
the
be made to
252 S. W.
Turner
Tex.
general
on
rule
This contention is
that the
corroborated
ness,
the
based
Co.,
113 Tex.
Riverside Cotton
is not
the un
Bros,
bound
And
Heid
the
S. W. 1060.
testimony of
wit
an interested
Civ.
v. Smith-James Grain Co.
judgment contrary
render
Grain Co.
267 W.
S.
Ross-Carter
testimony although uncdntradieted.
approve the rule
These decisions
S. W. 239.
adopt
un-
cannot
this view. While
We
we
Seley Williams,
applied
Tex.
as
App. 405,
upon
the
that
derstand
rule to
the
and other authori
50 S. W.
upon
the
it devolves
following
cited in
&
that case
Scott
ties
clearly
main-
supr
Mayhall
Lubbock Grain Coal
it
tain
brought,
the
the
parallel
are
cases
a. The facts
these
only requires proof
this most
appears,
furnish, it
a direct
decisions
the
facts which
establishes
a state of
analogy
at bar.
to the ease
of the forum.
a case
in the
however,
-insists,
the
that
v. Childs
First National Bank
App.)
shipping in-
with
of confirmation
letters
807; J. G. Smith Grain Co.
considered under
noted cannot be
structions
W.
v.
Richardson v.
249 S.
Shuler
Sugarland
Industries
declared
the rule
Cage,
W.
252 S.
Mills
v. Universal
If
cited.
authorities
testimony
All
is liable
the
confirmation, together with
the letters of
stated,
As
the written
noted.
attack
the
communications relied
to de-
bound
a con-
establish
Dallas, T.ex.,
ap-
under the
liver the
parties
the
identified
of
tract between
pellee’s previous
de-
testimony
appel-
uncorroborated
the
any point known as Texas
liver
the
argued
plausibly
agent.
It could be
lant’s
that,
points,
included
then
common
plea,
Sustaining
the court found
the
announced
authorities
nego-
under the rule
cited
sort
never been
there had
ap-
above,
made
a contract was
the
parties.
unwill-
between
We are
tiations
the
hay Dallas,
pellee
ing
carry
announced to such
rule
evidently
testimony,
case
sion
come
subdivi-
extremity. Appellee introduced no
of our venue statute.
made
its
on the record
but rested
appellant.
by appellee
upon
relied
is that
We
believe
stip-
above,
letters of confirmation which were not
ulated for
agreement,
out a
noted
thorities
case, fixing
prima
county.
Dallas
the venue
facie
required.
made after the contract is con-
And
was all
n Believing
particularly
introduced,
cluded,
after it
has been
evidence
performed,
partially
evidently
addi-
considered
upon
party
sought
court,
burden
contract in
tional
established
Tex.')
CO.
BEOS.
HUNT v.
.w.)
(300 S
in.
to deliver the
inbe
should
necessarily
these
indicate
follows
Dallas
judgment
trial court
letter of
that the
remanded,
have concluded
We
with
versed and
merely
giving
disposition
proceed
lant
meth-
final trial
n
od
ease in the trial court.
*3
agree-
ingrafted
completed
to the
cannot be
require appellant
answer
ment
place
from that
a different
appellee’s
[3, Upon
mo
4]
consideration
originally made.
reply
rehearing
tion for
thereto,
adding
any event,
the'
the matter
[6] In
there
we have concluded
aas written
letter of instructions
holding
in
in
decision
error
certainly
agreement
involved
con
to the
appellee contain
the letter
ing shipping
perplexity, and it is the
doubt and
siderable
con
was a
a
be conferred on
that venue cannot
agreement one for deliv
made the
or construc
doubtful
inference
strained and
ery
con
without
It is clear
in Dallas.
tion.
sidering
con
a
this letter as
reasons-stated, appellee’s motion for
For tract,
in Dallas
not laid
venue was
rehearing
granted,
county specified
fio
is affirmed.
the trial court
had,
performance
was to be
in which
con
letter
con
stituted a
lay in Dal
that venue
was reached
clusion
Bal
Commercial Credit Co.
BROS. CO.
HUNT
S. W.
et al.
lard
Barronian (Tex.
Antonio.
of Texas. San
Mfg.
Court of Civil
Sealy
Co.
Mill
9, 1927.
Nov.
App.)