Dublin Cotton-Oil Co. v. Robinson

• Decision Date: 08 April 1899
• Citation: 50 S.W. 1054
• Court: Texas Court of Appeals
• Parties: DUBLIN COTTON-OIL CO. v. ROBINSON et al.

50 S.W. 1054

DUBLIN COTTON-OIL CO. v. ROBINSON et al.

Court of Civil Appeals of Texas.

April 8, 1899.

Error from Dallas county court; Kenneth Foree, Judge.

Action by the Dublin Cotton-Oil Company against C. W. Robinson and John Hamilton. A plea of privilege filed by defendant Robinson was sustained, and a judgment rendered against Hamilton. Plaintiff brings error. Reversed.

Flournoy & Altman, for plaintiff in error. Frank Reeves, for defendants in error.

FINLEY, C. J.

The question for decision is fairly presented in the statement contained in the brief of plaintiff in error, and we here give the statement:

"This suit was filed in the county court of Dallas county, February 4, 1898, against C. W. Robinson, of Harris county, Texas, and John Hamilton, of Dallas county, Texas, to recover of said defendants damages for a breach of contract growing out of an order given by said Robinson to plaintiff in error for 336 tons of cotton-seed meal,—a product manufactured by plaintiff in error. This order was given by Robinson September 7, 1897: and after John Hamilton, through whom the contract and sale was made, agreed to guaranty the prompt performance of said contract on the part of Robinson, the same was accepted by plaintiff in error, and, as shown by plaintiff's petition, it undertook to fulfill its part of said contract, but the shipment was refused by Robinson. The contract price of the meal was $15 per ton, but at the time of tender of performance, or at the time of breach of contract, the market had declined, and the plaintiff sold said 336 tons at a loss of $596. Hamilton having guaranteed to plaintiff the performance of the Robinson contract, he was made a party to the suit. Robinson filed a plea of privilege to be sued in Harris county, and Hamilton filed a general denial. Upon the trial the court heard Robinson's plea of privilege separate from the main case, and the same was sustained. The court rendered judgment against Hamilton for $50. This appeal is presented in the nature of an agreed case, under article 1414, Rev. Civ. St. 1895; and the only error is as to the correctness of the court's ruling in sustaining Robinson's plea of privilege, which, in effect, was that he was not properly joined in the suit with Hamilton. A better or more concise statement of the facts proved cannot be given than the agreement in the record, and it is here given in full:

"`It is agreed by the plaintiff and the defendant C. W. Robinson as follows: That the following is a true and correct statement of the case and facts proven upon the trial of the plea in abatement of the defendant C. W. Robinson, filed in the above entitled and numbered cause, and this agreement is intended to comply with article 1414, Rev. Civ. St. 1895. Said plea in abatement was tried separately from the main cause, and the following is all the evidence introduced upon the trial thereof, viz.: First. In September, 1897, John Hamilton was a broker engaged in the purchase and sale of cotton-seed meal and cotton-seed products, doing business and residing in Dallas, Dallas county, Texas, under the firm name of John Hamilton & Co. The defendant Robinson was also a dealer in cotton-seed products, and was, and still is, and continuously has been, a resident of Houston, Harris county, Texas. Plaintiff is and was a corporation engaged in the manufacture and sale of said products, with its domicile and place of business in Dublin, Erath county, Texas. Second. Prior to September 7, 1897, the said John Hamilton & Co., as such brokers, had negotiated a sale from plaintiffs to defendant Robinson of 336 tons of cotton-seed meal, and the following instrument was executed by Robinson on said late: "Houston, Texas, Sept. 7, 1897. Messrs. Jno. Hamilton & Co., Dallas, Texas: We have this day bot., through you, from Dublin Oil Mill, Dublin, Texas, the following: 336 tons prime, bright, fine-ground C. S. meal, to be loaded at mill, in cars, in 100-lb. sacks, in good shipping order; quality and weight...