Burkitt & Barnes v. Berry
| Decision Date | 15 January 1912 |
| Citation | 143 S.W. 1187 |
| Parties | BURKITT & BARNES v. BERRY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Angelina County; James I. Perkins, Judge.
Action by S. N. Berry against G. W. Burkitt and L. J. Barnes, partners, doing business under the firm name of Burkitt & Barnes. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
A. R. & W. P. Hamblen and Martin Feagin, for appellants. E. B. Robb, for appellee.
This suit was brought by appellee against appellants to recover the sum of $942.61, the alleged purchase price of railroad ties sold appellant firm by appellee. Appellants, G. W. Burkitt and L. J. Barnes, are partners, doing business under the firm name of Burkitt & Barnes. The defendant Burkitt is a resident of Anderson county, and the defendant Barnes resided in Harris county, Tex.
The defendants filed pleas of privilege to be sued in the county of their residence, which were overruled by the court. The cause then went to trial with a jury, and a verdict and judgment was rendered in favor of plaintiff for the sum of $787.63. The ruling of the court upon the pleas of privilege is the basis of the first assignment of error.
The only writing evidencing the contract sued on is the following letter: It was shown that the defendant Barnes was at Lufkin, in Angelina county, at the time this letter was written, and in fact wrote the letter for appellee to sign. McNeal Switch is in Angelina county. The intention of both parties was that this letter would evidence the contract for the sale of the ties. The cars were promptly forwarded from Houston, with the instructions required in the letter, and appellee loaded and shipped the ties to the order of appellants.
The 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 the suit brought against them in that county. The letter does not in itself show any understanding of any kind on the part...
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