Early-Foster Co. v. A. P. Moore's Sons

• Court: Texas Court of Appeals
• Writing for the Court: Levy
• Citation: Early-Foster Co. v. A. P. Moore's Sons, 230 S.W. 787 (Tex. App. 1921)
• Decision Date: 07 April 1921
• Docket Number: (No. 2415.)
• Parties: EARLY-FOSTER CO. v. A. P. MOORE'S SONS, Inc.

Page 787

230 S.W. 787

EARLY-FOSTER CO. v. A. P. MOORE'S SONS, Inc.

(No. 2415.)

Court of Civil Appeals of Texas. Texarkana.

April 7, 1921.

Appeal from District Court, Smith County; J. R. Warren, Judge.

Suit by A. P. Moore's Sons, Incorporated, against Early-Foster Company. From a judgment denying defendant's plea of privilege to be sued in another county, defendant appeals. Affirmed.

The appellee, a private corporation, sued the appellant, a private corporation, in the district court of Smith county, for damages for the breach of an alleged contract of purchase and sale of a car of sugar. The principal office and domicile of appellee is at Tyler, in Smith county, and the principal office and domicile of appellant is, and at all times has been, in Waco, in McLennan county. Appellee alleged that, at the special instance and request of the appellant, the appellee contracted, sold, and delivered to appellant 500 bags of sugar, weighing 100 pounds each, at 24½ cents per pound, and for which the appellant obligated itself and promised to pay appellee at Tyler, Smith county, Tex., for said amount of sugar, the aggregate sum of $12,250.00. It is then further alleged—

"that after the contract of sale for the sugar defendant ordered and instructed plaintiff to ship said sugar to Polish Co-operative Grocery Company at Detroit, Mich., and to draw sight draft on said Polish Co-operative Grocery Company for the amount of said sugar; and acting under said instructions, and for the accommodation of defendant and its request, plaintiff delivered to the International & Great Northern Railway Company at Tyler, Smith county, Tex., to be carried and transported as designated by the defendant and in compliance with its instructions. Plaintiff alleges that the sugar on arrival at Detroit, Mich., was refused by the Polish Co-operative Grocery Company and by the defendant, and the plaintiff was notified of such refusal, and the plaintiff notified the defendant of such refusal, and requested the defendant to pay for such sugar and to make disposition of the same as it saw proper, and the defendant refused to accept said sugar, and refused to pay for same, although often requested to do so, and although the same amount has long since been due."

Appellant filed a plea of privilege, in proper form, to be sued in McLennan county. The appellee filed a controverting affidavit, maintaining that the suit was properly brought in the district court of Smith county because (1) the suit is against a private corporation in which the cause of action, or a part thereof, forming the basis of the suit arose in Smith county, and the same is therefore within the provisions of section 24 of article 1830, R. S. The court, after hearing the proof, overruled the plea of privilege, and the appeal is from that order.

The evidence in behalf of appellee, in support of the contest of the defendant's plea of privilege, is as follows:

"My name is H. L. Cambron and I live here in Tyler. I am treasurer of the A. P. Moore's Sons, Incorporated, which concern is a corporation.

"Yes; on July 5, 1920, I had a conversation over the telephone, one or more, with W. M. Foster of the Early-Foster Company of Waco; at least he was recommended as Mr. Foster of the Early-Foster Company of Waco. My recollection is that that first conversation occurred when Mr. Foster called us first about 1 o'clock in the afternoon, some time in the early part of the afternoon, at which time I was at my home. I was not at the office at that time because it was a holiday with us, for the reason that the Fourth of July was on Sunday and we closed on the 5th.

"As near as I can remember the substance of the conversation that took place in that telephone call between Mr. Foster and myself, as I remember, Mr. Foster called up and probably asked me about these four cars that had already been shipped, and if we had returns on them; and in the course of our conversation it came up about the price of sugar. He asked me what sugar was worth, and I told him that we were selling sugar to the retail trade at 27½ cents, whatever we might have been getting at that particular time, but that we were not buying any sugar, and for that reason I really did not know just what it was worth. I told him that we had sold our contracts down to where we had about 1,120 bags left. The contract about which I was talking to him, as far as our own purchases were concerned, was with the Imperial Sugar Company. So Mr. Foster asked me if we had any rolling cars, as I remember, the way we got started about sugar, and I told him that we had not. He said he would like to have a couple of 500-bag cars of rolling sugar, and I told him that we had no sugar rolling, and that the only thing we had for immediate shipment was a 360-bag car which was being loaded in Sugarland that day, which was the recommendation that the Sugarland people gave me about the loading of the car that we had ordered for our Tyler stock; so I explained to Mr. Foster that I could sell him that car of sugar, consisting of 360 bags, for immediate shipment, but he explained that he wanted 500-bag cars. I told him that it was barely possible that I could get the Sugarland people to load a 500-bag car of sugar immediately, provided they could get an empty car, but that I did not know what to do till I took the matter up with them; and then the question arose about price, and, in view of the fact that we had this sugar bought on a certain kind of arrangement, I asked him right away where he wanted to sell it, so that I would know how to quote him, and he said `Chicago,' and asked me what we would take for a car, and my recollection is that I asked him 25 cents f. o. b. Chicago. He said that was too high, that he could not make any money at that price; and then I, rather to feel him out, to see what he might be willing to pay for the sugar, I likely suggested, to find out what he would be willing to pay, and his counter offer was 24½ cents f. o. b. Chicago. I asked him if that would be net cash, and in order to understand his proposition thoroughly and to eliminate a telephone call to the Sugarland people, I said: `Now, that is 24½ cents f. o. b. Chicago, bill of lading attached, and if I can get the sugar shipped tomorrow you will take it?' He said, `Yes; but let me know this afternoon.' I then called the Imperial Sugar Company, and asked them if they could load a 500-bag car the next day for us; they told me they had a car spotted and were loading a 360-bag car for us that day. Yes; when I communicated with the Imperial Sugar Company people I then called Mr. Foster back; and then when I called back I told Mr. Foster that I got the sugar, and he said, `Well, you can handle it like you handled the other cars and draw on our...