Duncan Coffee Co. v. Clement
| Decision Date | 08 February 1952 |
| Docket Number | No. 15316,15316 |
| Citation | 246 S.W.2d 509 |
| Parties | DUNCAN COFFEE CO. v. CLEMENT. |
| Court | Texas Court of Appeals |
Samuel H. Peak, of Houston, for appellant.
Jack Love and Davis, Spurlock & Schattman, all of Fort Worth, for appellee.
This is an appeal by Duncan Coffee Company from a judgment of the district court of Tarrant County overruling its plea of privilege to be sued in Harris County, where its home office is located.
The appellee, Ira H. Clement, and appellant during the month of April, 1948, began negotiations which resulted in a written contract whereby appellee agreed to sell coffee and tea for the appellant in the State of Oklahoma. He was to receive $400 per month salary, certain traveling expenses and a percentage on coffee and tea sales, which commission was to be paid annually. The contract was to extend from May 15, 1948, to May 15, 1953. The appellee immediately moved to Oklahoma and began work under the contract. During the month of May, 1949, the parties entered into further negotiations with a view of changing the terms of employment, whereby the appellee would work on a straight commission basis. No satisfactory agreement was reached, however, and on the 8th of December, 1949, appellant notified appellee by letter from its home office in Houston that on December 15th the $400 per month salary, and reimbursement for expense, would terminate and that thereafter the appellee would be on a straight commission basis.
On December 14, 1949, appellee, by letter from Norman, Oklahoma, wrote appellant as follows:
'Yours very truly,
'Ira H. Clement.'
Thereafter, the appellee moved from Oklahoma to Johnson County, Texas, and later to Tarrant County, Texas. On March 5, 1951, he filed suit in district court of Tarrant County against appellant for damages growing out of the breach of the contract referred to above. Appellant filed its plea of privilege and the court's action in overruling said plea resulted in this appeal.
Appellee seeks to maintain venue in Tarrant County under Article 1995, R.C.S., sec. 23, Vernon's Ann.Civ.St. art. 1995, § 23. The pertinent parts of said section, in so far as this appeal is concerned, are the provisions that suits against a private corporation may be brought in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation has an agency or representative in such county; or if the corporation had no agency or representative in the county in which the plaintiff resided at the time the cause of action or part thereof arose, then suit may be brought in the county nearest that in which plaintiff resided at said time in which the corporation then had an agency or representative.
The cause of action consists of the facts which entitle one to institute and maintain a suit in court. Phoenix Lumber Co. et al v. Houston Water Co., 94 Tex. 456, 61 S.W. 707; National Life Co. v. Harvey, Tex.Civ.App., 159 S.W.2d 920.
In the early case of Lichtenstein v. Brooks, 75 Tex. 196, 12 S.W. 975, the Supreme Court held that when an employment contract is broken without fault of one party, his cause of action is not for the wages contracted for but it is for damages for the breach of the contract, and his right to recover the loss occasioned by the breach, not exceeding the contract price, arises at once. The Court points out that in such cases the difficulty is not as to where the cause of action is, nor when the suit may be brought, but it is knowing the amount of his loss. It may be that such loss cannot be ascertained before the end of the period contracted for or other employment is secured. Still there is only one cause of action and only one suit can be brought.
It was also held in Southern Properties v. Carpenter, Tex.Civ.App., 300 S.W. 963, that the breach of an employment contract gives the employee an immediate cause of action. To the same effect is the holding in Wichita National Bank v. U. S. Fidelity &...
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F.D.I.C. v. Bodin Concrete Co.
...and maintain an action at law or in equity. See A.H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 621 (1939); Duncan Coffee Co. v. Clement, 246 S.W.2d 509, 511 (Tex.Civ.App.--Fort Worth 1952, no writ). Thus, a cause of action encompasses every essential fact that a plaintiff must pr......
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American Quarter Horse Ass'n v. Rose, 17658
...1973 breach of contract by his suspension as a member of AQHA. Of some analogy was our holding in the case of Duncan Coffee Co. v . Clement, 246 S.W.2d 509 (Fort Worth Tex.Civ.App., 1952, no writ history), where Justice Renfro wrote at page 512: 'There is nothing to show that appellant part......