77 S.W.2d 895 | Tex. App. | 1934
This is an appeal from an order 'by the Tarrant county court at law overruling appellant’s plea of privilege to be sued in Dallas eounty, Tex.
By its controverting affidavit appellee alleged that appellant had signed a written financial statement which contained an agreement that purchases made from appellee, Monnig Dry Goods Company, are at their option payable at Fort Worth, Tarrant county, Tex., and that appellee “sold the goods at prices which are sued for” on the faith of said written promise.
On the trial no evidence was offered that any goods were sold or any debt incurred other than the testimony of appellee’s credit man, who testified that he “did approve orders for shipment to Mr. Hermer immediately after receiving this statement” (financial statement).
Appellant assigns as error that the ap-pellee did not prove a prima facie cause of action against appellant. The statement is made in many of the late eases that such proof is necessary to overrule a plea of privilege. Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.(2d) 845. These cases upon examination all go back to such cases as Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S. W. 747, in which it is held that, where the venue depends upon the nature of the cause of action, that cause of
The venue of this suit is based on a written contract performable in Tarrant county. That writing is fully proved. Under that writing, goods were shipped and delivered upon open account. No venue is claimed by virtue of such open account. That account is attached to the original petition, sworn to in full. It was before the trial court, we presume. It is before us on appeal. We know of no rule of reasoning or common sense that made it pertinent to the hearing on the plea of privilege.
The fact that the writing gave to appel-lee the option to require the account to bé paid at Fort Worth does not invalidate such right. Pavlidis v. Bishop & Babcock Sales Co. (Tex. Com. App.) 41 S.W.(2d) 294. There is a distinction between contracting for venue contrary to article 1995, R. S., and contracting for. performance in accordance with that article. Nor is it any defense that there is no proof that payment at Fort Worth was demanded prior to suit. The suit was filed at Fort Worth. If defendant should on the merits tender performance and prove that the only cause of such delay in performance was the failure of appellee to indicate the place of same, then appellee is thrown in the costs of suit, but no such issue is made here.
The judgment of the trial court is affirmed.