Baccus v. Plains Cotton Cooperative Association

• Decision Date: 21 October 1974
• Docket Number: No. 8502,8502
• Citation: 515 S.W.2d 401
• Parties: Jack BACCUS, Appellant, v. PLAINS COTTON COOPERATIVE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 401

515 S.W.2d 401

Jack BACCUS, Appellant, v.PLAINS COTTON COOPERATIVE ASSOCIATION, Appellee.

No. 8502.

Court of Civil Appeals of Texas Amarillo.

Oct. 21, 1974.

Rehearing Denied Nov. 18, 1974.

McGowan, McGowan & Hale, Bill McGowan, Brownfield, for appellant.

J. R. Blumrosen, Lubbock, for appellee.

REYNOLDS, Justice.

Defendant's plea of privilege, controverted on the exception that defendant had contracted in writing to perform an obligation in the county of suit, was overruled.Plaintiff's failure to prove delivery of the signed instrument made the basis of the suit required that the plea of privilege be sustained.Reversed and rendered.

PlaintiffPlains Cotton Cooperative Association instituted this suit in Lubbock County to compel defendantJack Baccus to specifically perform under an alleged contract signed by Baccus specifying his performance in Lubbock County, or, alternatively, for damages for breach thereof.Pleading his privilege to have the suit transferred to Terry County where he is domiciled, Baccus denied under oath delivery of his signed instrument.The association controverted the plea, interposing subdivision 5 of Vernon's Ann.Civ .St. art. 1995 which, insofar as applicable here, provides: 'If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county . . . suit upon or by reason of such obligation may be brought against him . . . in such county. . . .'

At the venue hearing, the association introduced in evidence the written instrument which Baccus readily admitted signing on March 12, 1973.By the terms of the document, all cotton produced by Baccus during the 1973--74 crop year on a designated farm, which the evidence revealed was rented to Baccus, would be sold to the association at the prices quoted in an attached schedule.Baccus's signature on the instrument was secured by Kenneth Willis, an employee of the Brownfield Cooperative Gin, as agent for and subject to contract confirmation by the association, after Willis had telephoned the association's Lubbock office to ascertain that it was offering cotton contracts.

It was the testimony of Baccus that when he signed the document, he told Willis not to send it in because he could not contract the cotton, even his own or his landlord's, until he had discussed the matter with his landlord; and, subsequently when '. . . cotton had gone up, I knew it wouldn't do any good to talk to the landlord, I told them not to send it in. . . .'He stated that he never delivered the document to anyone nor authorized its delivery to the association.

Willis testified that '. . . as far as completing the contract . . . we had to wait for the landlord's signature. . . .'Willis, who terminated his employment with the gin during the first part of April of 1973, did not mail the signed instrument to the association '(b)ecause the landlord hadn't signed it.'

Baccus's landlord never signed the instrument.When the instrument was not received in the association's office in the normal course of time, several telephone calls were made from the office to the gin to inquire about the document.Three and one-half months after Baccus...