Garrett v. J. A. Hughes Grain Co.

MOURSUND, J.

This is a suit for damages for alleged breach of a written contract for the sale of 50 carloads of hay by appellee, a corporation chartered under the laws of Texas, to appellant. The appellee filed a plea of privilege to be sued in Gray-son county, to which appellant answered by alleging exceptions to the venue statute (Rev. St. 1911, art. 1830) under subdivisions 5 and 24 thereof. The plea was sustained,- and this appeal followed.

The contract was prepared by the president *759 of appellee and sent in duplicate to appellant for liis acceptance. Appellant signed the two copies at San Antonio, retaining one and sending the other to appellee. The cbn-tract provided for the sale to he “f. o. b. points taking common point rate”; that prices are always either f. o. b. shipping point, or based on value at shipping point, plus freight charges to destination; that no part of appellee’s agreement is to be performed at destination; that drafts on appellant, with bills of lading, always in appellee’s name, attached, will be sent to the Alamo National Bank of San Antonio, “except demand drafts or all shipments to prepay stations.” Appellee’s president testified that the words, “f. o. b. points taking common point rate,” mean that the hay is to be shipped with freight prepaid to any point taking the Texas common point rate which might be designated by appellant; that on March 1, 191S, appellant wired appellee to ship 1 or 2 carloads of the hay to San Antonio each day, and by letter appellee informed appellant that its shipper had been instructed to comply with such request. Several cars were shipped consigned to appellee or one of its employes, and drafts on appellant, with bills of lading attached, sent to Alamo National Bank for collection, but appellant refused to accept the shipments on the ground that the hay was not of the quality called for in the contracts. The contract contained the following clause:

“It is also hereby agreed that all obligations, pertaining to or growing out of the contract, are payable at Howe, Texas.”

[1,2]

The contract was made in Bexar county, and therefore the cause of action arose, in part, in said county, and, appellee being a private corporation, the suit could be brought in Bexar county under the twenty-fourth exception to article ⅜830. Cummer Mfg. Co. v. Kellam, 203 S. W. 463 ; Cuero v. Feeders’ Supply Co., 203 S. W. 79 . We are also of the opinion that the contract was performable in Béxar county, at least under the subsequent amendment thereof, whereby it was agreed to deliver the hay at San Antonio. Appellee relies on the clause in the contract that all obligations pertaining to or growing out of the contract are payable at Howe, Tex., contending that it constitutes a clause fixing the exclusive venue in Grayson county. We do not so construe the clause. It does not purport to designate Howe, Tex., as a place of exclusive venue, and it was optional with the appellant to sue in Grayson county or any other county in which the statute authorizes the suit to be instituted. The case of Moline Plow Co. v. Biggarstaff, 185 S. W. 341 , relied on by appellee, is not in point, for the reason that the language is entirely different, and discloses an intention to agree on a place of - exclusive venue.

The judgment is reversed, and the cause remanded.

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