Border-Milling v. Bednarz Billimek
BORDER-MILLING CO. Et Al. v. BEDNARZ & BILLIMEK Et Al.
Opinion of the Court
COBBS, J.
We have given this case careful consideration.
Article 1830, R. S., provides:
“No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases,”
—one of which cases is, sub. 5 thereof:
“Where a person has contracted in writing to perform an obligation in any particular county, in which case suit may be brought either in such county, or where the defendant has his domicile.”
This privilege to the defendant to be sued in his own county is a very valuable right, and should in no case be taken away from the defendant unless the contract clearly expresses a waiver of his right to be sued in his own county by a contract that will admit of no other construction.
The contract sued upon herein contains no express agreement to pay or perform the contract in San Antonio. The corn was to be placed f. o. b. at Poth, which only means a delivery to the common carrier on the car destined to San Antonio. If they were to be shipped, of course there had to be some destination other than the remotest parts of the world. As said in Mahon v. Cotton, 13 Tex. Civ. App. 239 , 35 S. W. 869 :
“One who sues the defendant in another county than in that in which he resides, must bring his case clearly within one of the exceptions to the general rule.”
See Cohen v. Munson, 59 Tex. 237 ; Malloy v. Industrial Cotton Oil Properties (Tex. Civ. App.) 238 S. W. 985 .
To take that right away from a litigant by construction of an unsigned order for the purchase and shipment of goods it must contain such clear and unambiguous language that it is to be performed in another county than the residence of the defendant, so that no other fair construction can be placed up■on the contract.
We do not believe there are any words-in' this contract that binds the shipper to do more than place the goods f. o. b. upon the cars. The delivery is then made complete by the shipper when so placed though destination is named, but, the goods being thus in possession of and under the control of the purchaser, he may without the shipper’s consent divert them to some other point, and here, destination has no other significance.
The motion for rehearing is granted, and. the judgment of the court is affirmed.
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