Cecil v. Fox

• Decision Date: 18 January 1919
• Docket Number: (No. 8039.)
• Citation: 208 S.W. 954
• Parties: CECIL v. FOX.
• Court: Texas Court of Appeals

208 S.W. 954

CECIL v. FOX.

(No. 8039.)

Court of Civil Appeals of Texas. Dallas.

January 18, 1919.

Appeal from District Court, Navarro County; H. B. Daviss, Judge.

Action by Alexander Fox against C. W. Cecil and another. From ruling overruling plea of privilege of defendant named to be sued in the county of his residence, defendant named appeals. Affirmed.

Walker & Baker, of Cleburne, and Davis & Jester, of Corsicana, for appellant.

Richard Mays, of Corsicana, for appellee.

RAINEY, C. J.

This suit was brought by appellee Fox against C. W. Cecil and Cecil & Co., the latter a corporation, both alleged to be residents of Johnson county, Tex., to recover a forfeiture of $1,000 for the breach of a contract. C. W. Cecil filed a plea of privilege to be sued in the county of his residence, which plea on a hearing was overruled, and from which ruling this appeal is taken.

Appellant's plea of privilege recites, among other things:

"First. That this defendant is now, and was at the time of the institution of this suit and service of citation, a resident of Johnson county, Tex., and that he is not now, and was not at the time of the institution of this suit or service of citation, a resident of Navarro county, Tex. Second. That none of the exceptions to exclusive venue in the county of one's residence mentioned in article 1830 or in article 2308 of the Revised Civil Statutes exists in this cause" — but omitted to allege "nor at the time of filing of such plea."

Appellee contested the plea of privilege by demurrers, general and special. The said plea came on to be heard on the pleadings and evidence, and, after hearing the demurrers and evidence, it was taken under advisement pending the trial of case, and then the court rendered the following judgment:

"It is therefore ordered and adjudged by the court that the general demurrer to the defendant's plea of privilege be sustained. It is further ordered and adjudged by the court that, upon the evidence and merits of the case, said plea or privilege be, and the same is, overruled" — and adjudging costs against appellant.

The facts adduced on the hearing of the plea of privilege show that the district court of Navarro county had jurisdiction of C. W. Cecil to try this case. The contract entered into between appellant and appellee was reduced to writing, and provided for part of the contract to be performed in Navarro county, not in express words, but by implication, in the general agreement as follows:

"The said Fox agrees and obligates himself to sell and convey to the said Cecil all and entire the stock of goods, wares and merchandise situated in a two-story brick building, No. 106, on the west side of South Beaton street, in the city of Corsicana, Tex., now owned by him, together with all fixtures in said building, and used in connection with said stock of merchandise, except the shelving and three box counters and one safe. The property conveyed constitutes a general dry goods stock of merchandise. The said Cecil now agrees to purchase and receive said stock of merchandise from said Fox, and pay him therefor the sum of twenty thousand ($20,000.00) dollars."

This language says that this stock of goods is situated in a house in Corsicana, and we judicially know Corsicana is in Navarro county. The contract provides for appellee to deliver the stock of goods and for appellant to receive them, and no other place is specified in the contract at which they are to be delivered; therefore we are forced to the irresistible conclusion that the contract was at least partly performable in Navarro county.

Another part of the contract provides:

"It is further agreed, that both the said Fox and the said Cecil will and do put up as a forfeit, their certified checks, each in the sum of $1,000.00 payable to each other, and deposited with the Corsicana National Bank, as stake-holder, together with this contract to insure the performance of its terms."

This part of the contract provides for something to be done in Navarro county; that is, to deposit a certified check for $1,000 as a forfeit. This appellant has failed to do and for which he is liable, and he in this, as well as in the other, section of the contract, waived his privilege to be sued in the county of Johnson and made himself subject to section 5 of article 1830, Rev. St., which provides:

"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."

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