Chamberlain v. Fox

• Decision Date: 22 November 1899
• Parties: CHAMBERLAIN et al. v. FOX et al.
• Court: Texas Court of Appeals

Page 297

54 S.W. 297

CHAMBERLAIN et al. v. FOX et al.

Court of Civil Appeals of Texas.

November 22, 1899.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Edwin Chamberlain & Co. against T. J. Fox and others on a bond. There was a judgment for plaintiffs, and defendants appeal. Reversed as to defendant Fox, and judgment rendered in his favor, and affirmed as to the other defendants.

Jas. D. Crenshaw, for appellants. J. D. Cunningham and Ogden & Terrell, for appellees.

FLY, J.

This is a companion case to that of Chamberlain v. Meredith, 52 S. W. 120, decided by this court, and we see no reason to change the opinion delivered in that case. There is no provision in the contract between T. J. Fox and appellants that any sum should be paid in Bexar county, the only provision being to the effect that a bond should be payable to appellants in San Antonio. Such bond was not furnished, and by accepting the bond furnished appellants waived the place of payment. The judgment is affirmed as to the sureties on the bond, and reversed as to T. J. Fox, the principal, and judgment here rendered in his favor on his cross assignments.

On Rehearing.

(Dec. 20, 1899.)

There is no conflict between the decision in this cause and that in case of Yeager v. Focke (Tex. Civ. App.) 25 S. W. 662. In that case parties in Flatonia had an open account with others in Galveston, and were in the habit of drawing on the latter, most of the drafts having inserted in them directions to charge the amounts of the drafts to "current account with you, which is payable at Galveston, Texas." That was a direct promise to pay the account in Galveston, and not a promise, as in this case, to give at some time a bond or promissory note for the amount payable in a certain place. In the case of Lindheim v. Muschamp, 72 Tex. 33, 12 S. W. 125, Muschamp had entered into a contract with Lindheim & Bro. to furnish material and build them a house in Del Rio, and afterwards, on the same day, gave a bond, with two sureties, who resided in another county. Muschamp and the sureties were sued in Val Verde county, and the latter pleaded their privilege to be sued in the county of their residence. The bond was not payable in any particular place. It was said: "The engagement entered into by Muschamp to construct the building was one contract, and the bond was another, each separate and distinct from the other. The liability upon the latter was dependent entirely upon the performance or...