On July 2, 1921, appellee filed this suit for salary he claimed due him by appellant H. E. Wrenn and T. J. Kelly, alleging that аppellant was a resident citizen of Falls county, and that T. J. Kelly was a resident citizen of McLennan county. No service was had on T. J. Kelly.
Appellant filed a plea of privilege in statutory form, alleging that his residence and domicile were in Falls county, and that T. J. Kelly was not a resident of McLennan county at the time suit was instituted nor at any time since, but that Kelly’s residence was in Ada, Okl.
Appellee filed a controverting affidavit, contending that the district court of McLen-nan county hаd jurisdiction because T. J. Kelly , at the time the suit was filed was a resident citizen of McLennan county; and, further, that thé court had jurisdiction because plaintiff was * suing upon a written contract entered intо by and between plain-’ tiff and defendants, which was to be performed in McLennan county.
The aрpellant’s plea of privilege was heard before the court, and the court, after hearing the pleadings and the controverting affidavit and the testimony, entered a general judgment, оverruling the plea of privilege, and from said judgment this appeal is prosecuted.
The trial‘сourt having entered a general judgment, if either ground of jurisdiction claimed by appellee is supported by the testimony, the judgment should be affirmed.
The statement of facts shows that T. J. Kelly and H. E. Wrenn cоnstituted a partnership, organized to conduct a general domestic and export cоtton business, with their head office in Waco, McLennan county. They made a written contract with аppellee, whereby they employed him to work for them at their office in Waco for a period of one year, beginning July 1, 1920, and ending June 30, 1921, for a salary of $5,000. The contract does not stаte where the salary is to be paid.
We do not believe that this is such a contract as comes under subdivision 5 of article 1830 of the Revised Statutes, which will permit a defendant to be sued outside оf the county of his residence.
The question as to where a contract under its terms is to be pеrformed has been the source of a great deal of litigation. The established law in Texas nоw seems to be that wherever, by a fair construction of the contract, it can be construеd as performable in part, suit may be maintained, following the cases of Seley v. Williams (Tex. Civ. App.)
It is equally well settled that before a suit can be maintained upon a contract, it must appear that, the portion of the contract involved in the suit is performable in the county where the suit is brought. Under the contract in this case, appellee was to and did wort for the appellant and Kelly in McLennan county. The contract, however, does not in any way intimate or suggеst that he was to receive his pay or be paid in McLennan county, or that appellant and Kelly in any way obligated themselves to pay his salary in McLennan county. This suit is for a balance which appellee claims is due him for salary under said contract, and we think falls within the rule laid dоwn in McCammant v. Webb (Tex. Civ. App.)
Eor the purpоse of acquiring jurisdiction in a suit, a party may have his residence in two or more counties, and hе may be sued in either one. Pearson v. West,
The testimony raises the issue as to whether T. J. Kelly was a rеsident of Mc-Lennan county when this suit was filed. . On or about the 2d day of July, 1921, he was a member of the firm of Kelly & Wrenn, whose head office was in Waco, McLennan county. He was a married man, and he and his wife had been living in Waco for a year or 18 months. He had been making trips to Oklahoma at different timеs from February to July, 1921, spending part of the time in Oklahoma and spending part of the time in Waco. His triрs to Oklahoma were for the purpose of purchasing and shipping' cotton. He went to Oklahoma first in February, 1921, but only took a few of his things; he spent part of his time in Waco and part in Oklahoma after that; and finally, on the 1st or 2d of July, 1921, moved all of his things to Oklahoma, at that time taking his office supplies. At that time he was married and his wife was living in Waco. She testified they were not living together and that shе was divorced from Mr. Kelly a couple of months thereafter.
The case of Latham v. Continеntal Supply Co. (Tex. Civ. App.)
In the trial сourt it was an issue of fact as to whether Kelly at the time this suit was filed on July 2, 1921, was a resident of McLennan county, as contemplated by the statutes. If there is sufficient evidence to support the finding of the trial court, this court is not authorized to disturb the trial court’s judgment. P. & N. Ry. Co. v. Thompson,
Since in our opinion there is evidence to support the judgment of the trial court, we affirm its judgment.