Barker v. Lone Star Brewing Co.

• Decision Date: 27 September 1961
• Docket Number: No. 5482,5482
• Citation: 350 S.W.2d 44
• Parties: W. J. BARKER, Appellant, v. LONE STAR BREWING COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 44

350 S.W.2d 44

W. J. BARKER, Appellant, v. LONE STAR BREWING COMPANY, Appellee.

No. 5482.

Court of Civil Appeals of Texas, El Paso.

Sept. 27, 1961.

Warren Burnett, Odessa, for appellant.

Matthews, Nowlin, MacFarlane & Barrett, Patrick H. Swearingen, Jr., San Antonio, Maurice R. Bullock, Fort Stockton, for appellee.

LANGDON, Chief Justice.

This is a plea of privilege case. Suit was brought in the District Court of Pecos County by appellant, W. J. Barker, doing business as Barker Distributing Company, against appellee, Lone Star Brewing Company, a corporation, domiciled in Bexar County. Plaintiff Barker alleged that defendant Brewing Company canceled a written agreement under which plaintiff Barker purchased beer from defendant for distribution in Pecos and other designated counties. Barker contends that defendant 'wrongfully' and 'arbitrarily and capriciously' canceled the agreement, and that he suffered damages thereby in the amount of $100,000. Defendant Brewing Company filed its plea of privilege to be sued in Bexar County, the county of its residence; and, subject to its plea of privilege, filed its answer, which is not material to this appeal.

Plaintiff Barker controverted defendant's plea of privilege and adopted therein the allgations contained in his original petition. Plaintiff did not deny that defendant's residence was in Bexar County, but contends that this suit can be maintained in Pecos County under the exceptions set out in subdivisions 5 and 23, of Article 1995, Vernon's Annotated Texas Civil Statutes.

Following a hearing, the trial court sustained defendant Brewing Company's plea of privilege and ordered the cause transferred to the district court of Bexar County. From such order appellant has perfected this appeal.

Appellant has predicated this appeal upon two points, by which it is asserted that the trial court erred in sustaining defendant's plea of privilege: (1) because the defendant contracted in writing to perform an obligation in the county of suit, and plaintiff's suit is upon that obligation; and, (2), because the defendant is a private corporation, and part of plaintiff's cause of action arose in Pecos County.

Appellant bases his suit upon a written agreement dated November 2, 1950, set out as follows:

'Lone Star Brewing Company

542 Simpson Street . . ..

P. O. Box 2060

Telephone Fannin 8301

'San Antonio 6, Texas

'Agreement

'November 2, 1950

'This will evidence and constitute our sole agreement with respect to your appointment as a distributor of Lone Star Beer in the counties of Reagan, Upton, Crane, Brewster, Presidio, Pecos in the State of Texas. We agree to furnish you, during the continuation of this distributorship, the amount of beer required to serve said area, subject to the output of our plant being sufficient to serve you and all other distributors, the Brewing Company reserving the right to apportion output between distributors when unable to supply the full requirements of all.

'It is understood that you are at all times to be properly licensed and at all times maintain warehouse and office facilities, trucking equipment and sales personnel suitable to and commensurate with the Market you are to serve and satisfectory to Lone Star Brewing Company. It is also understood that you are to cooperate at all times in a reasonable amount of special advertising as and when requested by the Brewing Company.

'Prices of the produce shall conform to the prevailing prices charged from time to time to all other distributors of this product in the State of Texas. All shipments of products and the billing thereof shall be f. o. b. San Antonio, Texas, and all bills will be payable at San Antonio, Texas, empties to be returned to Brewery by distributors.

'It is understood that the Brewing Company shall have no control whatsoever over the mode and manner of transacting business by the distributor, nor in the employment of or discharging of distributor's employees, nor in any other particular, but it is specifically agreed that the Brewing Company shall be entitled to discontinue and cancel your distributorship at any time and for any cause deemed adequate by it.

'In the event you use the name 'Lone Star' in connection with your business as distributor of said beer, it is understood that you will immediately discontinue the use of it upon the termination of the distributorship.

'You will indicate your acceptance as provided on these forms and return both copies. One copy will be returned subsequently for your files after being properly executed and recorded by this office.

'Yours very truly,

'Lone Star Brewing Company

'By s/ Harry Jersig

President

'Accepted and Agreed:

'Barker Distributing Company

'By W. J. Barker /s' After careful examination of entire contract, we have concluded that the contract itself imposes no obligation upon defendant Brewing Company, appellee herein, to do or perform any act or thing in Pecos County. All obligations imposed upon defendant, under the terms of the agreement, are performable in Bexar County. The agreement imposed no obligation upon plaintiff Barker to continue the distributorship for any particular period of time, and presumably was subject to termination by him at any time. With respect to defendant's right to terminate the agreement, the contract provides: '* * * it is specificially agreed that the Brewing Company shall be entitled to discontinue and cancel your distributorship at any time and for any cause deemed adequate by it.'

On April 11, 1960, after the contract had been in effect for nine and one-half years, defendant Brewing Company advised plaintiff by telegram as follows: 'For reasons deemed adequate by Lone Star Brewing Company your distributorship agreement dated November 2, 1950 is hereby discontinued and concelled * * *.'

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