37 S.W.2d 240 | Tex. App. | 1931
The appeal is from an order overruling appellant's plea asserting a right he claimed to be sued in Morris county, where he resided, instead of in Dallas county, where appellee commenced and was prosecuting the suit. For the purpose of the appeal the parties agreed that the facts of the case were as follows: July 7, 1928, appellant shipped to appellee (a corporation), by rail from Morris county, 258 sacks of potatoes for storage by appellee in its warehouse in Dallas, and July 11, 1928, shipped to it 174 sacks of potatoes for a like purpose. The freight charges on the shipments, amounting in each instance to *241
$80.60, were paid by appellee, and to cover same appellant made and delivered to appellee his two promissory notes for $80.60 each, payable to appellee's order in Dallas. The suit was on these notes, and on an open account covering charges for storing the potatoes amounting to $503.16. The contention of appellee in its affidavit controverting appellant's plea of privilege was that it was entitled to maintain the suit in Dallas county by force of exception 5 to the prohibition in article
Plainly, we think, appellant's undertaking to pay the notes was a separate and distinct obligation from his undertaking to pay the sum covered by the open account, and we would not for an instant hesitate to hold that the fact that the undertaking was to pay the notes in Dallas county did not entitle appellee to maintain the suit in that county so far as it was on the open account, but for the holding of the Supreme Court in Middlebrook v. Mfg. Co.,
The judgment is affirmed.