Bell County Brick Co. v. R. L. Cox & Co.

• Decision Date: 21 October 1903
• Citation: 76 S.W. 607
• Parties: BELL COUNTY BRICK CO. v. R. L. COX & CO.
• Court: Texas Court of Appeals

76 S.W. 607

BELL COUNTY BRICK CO. v. R. L. COX & CO.

Court of Civil Appeals of Texas.

October 21, 1903.

Appeal from Bell County Court; G. M. Felts, Judge.

Action by the Bell County Brick Company against R. L. Cox & Co. From a judgment for defendants, plaintiff appeals. Reversed.

John B. Durrett, for appellant. James A. Harrison and Pendleton & Ferguson, for appellees.

STREETMAN, J.

Appellant brought this suit against R. L. Cox & Co. to recover damages on account of the breach of the contract hereinafter set out. The defendants presented a plea of privilege, which was sustained by the lower court; and it is conceded by appellant that this judgment was correct, unless the county court of Bell county had jurisdiction under paragraph 5, art. 1194, of the Revised Statutes of 1895, providing that, where a person has contracted in writing to perform an obligation in any particular county, the suit may be brought in such county. The following facts were shown upon the hearing of said plea of privilege:

"(1) The written contract sued upon was introduced in evidence, as follows:

"`State of Texas, County of Jefferson. This instrument witnesseth, that in consideration of the R. L. Cox & Co. Company of Beaumont, Texas, selling to the Bell County Brick Company, of Belton, Texas, their supply of crude fuel oil to be shipped at the rate as ordered, car per ____ for the term of one year, beginning March 1, 1902, at 41 cents per barrel of 42 gallons each, in carload lots, based upon ____ cents per hundred pounds rate of freight to ____ R. R. station (buyer to receive benefit of decline in freight rate, and to pay advance if rate is raised) freight to be allowed on invoice: terms 30 days sight draft attached to bill of lading, payable at Beaumont.

"`The said Bell County Brick Company agrees to receive said oil promptly from the transportation company and empty the tank cars at once, and will pay all demurrage charges should any accrue, and also pay for the oil at the price and in the manner named above as each shipment is made, and in the event the said Bell County Brick Company should fail to pay promptly, that said R. L. Cox & Co. may at their option at once terminate and cancel this contract. It is further agreed and understood that this contract is not voidable, except by the act of God, accidents to oil wells, governmental interference, fire or strikes, affecting either party to this contract, nor is the said R. L. Cox & Co. to be held responsible for delays occasioned by the transportation companies, and their responsibility ceases when they obtain bill of lading from the transportation company. R. L. Cox & Co. reserves the right of routing all shipments. Signed in duplicate this the 1 day of March, 1902. Delivery to be made M., K. & T. Ry. Bell County Brick Co. by W. F. Beamer, R. L. Cox & Co.

"`Accepted and approved by the R. L. Cox & Co. per E. A. Sterling.

"`Memoranda for purchaser to fill out.

"`Capacity of our storage tank ____ barrels or ____ gals. If the storage tank is not completed, state when it will be completed and its capacity. ____. The tank is located on the M., K. & T. Ry. track, within ____ feet thereof. Daily average consumption of our plant is ____ which is operated ____ days per ____.'

"(2) The said R. L. Cox & Co. was a firm doing business at Beaumont, in Jefferson county, Texas, and engaged in the business of producing and selling crude fuel oil at that place.

"(3) The Bell County Brick Company was a private corporation engaged in manufacturing bricks, and owning and operating a brick plant located one and one-half miles east of the town of Belton, in Bell county, Texas, on the line of the M., K. & T. Railway, and having a switch from its said plant to the said railway. That the said Bell County Brick Company used crude fuel oil for the purpose of manufacturing brick at its said plant, and for no other purpose.

"(4) That the said M., K. & T. Railway did not extend from the brick plant of the ...