Burkitt Barnes v. Berry

PLEASANTS, O. J.

This suit was brought by appellee against appellants to recover tbe sum of $942.61, tbe alleged purchase price of railroad ties sold appellant firm by appel-lee. Appellants, G. W. Burkitt, and L. J. Bames, are partners, doing business under the firm name of Burkitt & Bames. Tbe defendant Burkitt is a resident of Anderson county, and tbe defendant Bames resided in Harris county, Tex.

Tbe defendants filed pleas of privilege to be sued in tbe county of their residence, which were overruled by tbe court. Tbe cause then went to trial with a jury, and a verdict and judgment was rendered in favor of plaintiff for tbe sum of' $787.63. Tbe ruling of the court upon tbe pleas of privilege is the basis of tbe first assignment of error.

[1]

Tbe only writing evidencing the contract sued on is the following letter: “Lufkin, Texas, 11/15/07. Burkitt & Bames, Houston, Texas. Dear Sirs: Please give me shipping instructions, and assist me in getting car for what red and pin oak ties I have on side-track at McNeal Switch. Will accept 28 cents f.o.b. cars McNeal Switch for same. It will take about twenty cars or more, and please do what you can to get me tbe cars at once, and oblige, Yours truly, S. N. Berry.” It was shown that tbe defendant Barnes was at Lufkin, in Angelina county, at tbe time this letter was written, and in fact wrote tbe letter for appellee to sign. McNeal Switch is in Angelina county. Tbe intention of both parties was that this letter would evidence tbe contract for the sale of tbe ties. Tbe cars were promptly forwarded from Houston, with tbe instructions required in the letter, and appellee loaded and shipped tbe ties to tbe order of appellants.

Tbe only ground upon which appellee claims that appellants’ plea of privilege was properly overruled is that this letter is a written contract, to be performed in Angelina county, and therefore defendants must answer to tbe suit brought against them in that county. Tbe letter does not in itself show any understanding of any kind on tbe part of appellants. Having accepted tbe offer by forwarding tbe cars, and having tbe ties shipped to their order, appellants would at least prima facie be bound to appellee for tbe payment of tbe price stipulated in tbe letter. But there is no promise, expressed or implied, that such payment should be made in Angelina county. Tbe acceptance of appellee’s offer to sell tbe ties at 28 cents f.o.b. cars at McNeal Switch cannot be considered a promise in writing on tbe part of appellants to pay for tbe ties at said switch. The phrase in tbe letter “f.o.b. cars McNeal Switch” was not intended as designating the place of payment, but was only used to fix tbe price appellee was to receive for tbe ties. McCullar Lumber Co. v. Higginbotham Bros., 118 S. W. 885 .

[2]

If an implied promise to pay in Angelina county is shown, this would not defeat defendants’ right to be sued in tbe county of their residence. Tbe agreement or promise to perform in a county other than that of tbe promisor’s residence, in order to fix the venue in such county, must be in writing, and tbe right of a defendant to be sued in tbe county of bis residence can only be defeated when tbe plaintiff brings bis ease clearly within tbe exception contained in tbe statute. Cohen v. Munson, 59 Tex. 237 ; Mahon v. Cotton, 13 Tex. Civ. App. 239 , 35 S. W. 869 ; Russell & Co. v. Heitmann & Co., 86 S. W. 75 .

Tbe judgment of the trial court is reversed, and tbe cause remanded, with instructions to that court to sustain defendants’ plea of privilege and to transfer tbe case to the proper court of Harris or Anderson county, as plaintiff may elect.

Reversed and remanded.