Farmers' Seed & Gin Co. v. Brooks

• Court: Texas Supreme Court
• Writing for the Court: Taylor
• Citation: Farmers' Seed & Gin Co. v. Brooks, 81 S.W.2d 675, 125 Tex. 234 (Tex. 1935)
• Decision Date: 24 April 1935
• Docket Number: No. 1440-6091.,1440-6091.
• Parties: FARMERS' SEED & GIN CO., Inc., v. BROOKS.

81 S.W.2d 675

FARMERS' SEED & GIN CO., Inc., v. BROOKS.

No. 1440-6091.

Commission of Appeals of Texas, Section B.

April 24, 1935.

Appeal from Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by H. C. Brooks against the Farmers' Seed & Gin Company, Inc. Judgment for plaintiff, and defendant appeals. On certified questions from the Court of Civil Appeals.

Questions answered.

Moore & Moore, of Paris, for appellant.

Carl Rountree and Philip Younge, both of Lamesa, for appellee.

TAYLOR, Commissioner.

The questions certified arose upon trial of defendant's plea of privilege to be sued in the county of its domicile, Lamar county. The suit in which the plea was interposed was filed by plaintiff in Lamesa, Dawson county. Defendant gin company, after having sold to plaintiff a carload of cottonseed, drew draft upon him, bill of lading attached. Plaintiff, upon arrival of the car, paid the draft and received the seed. He then filed suit alleging the shipment to be impregnated with cocklebur seed, and inferior in quality to that contracted for by the parties.

The honorable Court of Civil Appeals for the Eleventh Supreme Judicial District presents two certified questions. The statement in part and questions are:

"Plaintiff seeks to hold the venue of the suit in Dawson County under exceptions 5 and 23 to the general venue statute as set out in article 1995, R. S. of Texas. * * * We consider the pleadings of the respective parties, the plea of privilege, the controverting affidavit, etc., sufficient to present the controlling issues based upon the * * * exceptions. * * * According to the pleadings and the testimony the lawsuit grows out of a transaction between the parties, * * *" as above stated. The consignment was "to shipper's order, notify Brooks." "The defendant company drew a draft upon the purchaser Brooks for the price of the cottonseed and to the draft was attached the order bill of lading. The draft was paid in Lamesa, Texas, by Brooks, and upon its being paid the bill of lading was delivered to Brooks by the local bank through which the transaction was handled at that place. Brooks presented the bill of lading to the railroad company, whereupon possession of the car of cottonseed was delivered to him.

"This is substantially the transaction pleaded by plaintiff Brooks, and it appears to reflect the contract and understanding between the parties, and what was done in pursuance of the contract with reference to the delivery of the shipment and the payment of the draft. Such set of facts seems to constitute a written contract performable in the county in which the shipment is received and delivered to the purchaser, and we are constrained to hold that, upon such a showing, the plaintiff discharged the burden resting upon him to prove facts sufficient to establish an exception to the general venue statute and bring the case within the exception contained in subdivisions 5 and 23 respectively. The opinion in Davis v. Texas Life Ins. Co. (Tex. Civ. App.) 22 S.W.(2d) 960; Pittman & Harrison Co. v. Sanders (Tex. Civ. App.) 234 S. W. 412; Harris et al. v. San Antonio & A. P. Ry. Co. (Tex. Civ. App.) 221 S. W. 1118 (last paragraph), and other authorities of like import among our decisions, would seem to authorize such a holding and bear out the contention of the appellee, which is succinctly stated in his brief in this language:

"We very strongly take issue with the appellant that appellee (Brooks) was required to prove his cause of action upon the hearing of the plea of privilege, and in doing so called the court's attention to that part of the statute which directs the contents of a controverting answer, as follows:

"`Setting out specifically the fact or facts relied upon to confer venue of such cause.' `In this case the plaintiff did not rely upon the breach for venue, but relied upon statutory exceptions for venue in Dawson County, Texas. * * *'

"The defendant's contentions are clearly reflected by this excerpt from its brief:

"`According to the law as announced in the above cited authorities, and many others of similar import, we respectfully submit that the court must hold that the plaintiff's proof introduced upon the hearing of the plea of privilege was fatally insufficient in that it showed no cause of action, prima facie or otherwise, against the defendant suable in Dawson County; that is to say, the plaintiff introduced no evidence of any authorized breach upon the defendant's part of the sales contract.' (Italics ours.)

"In support of this contention the defendant cited numerous authorities, among them Browne v. Heid Bros., Inc. (Tex. Civ. App.) 12 S.W.(2d) 587; De Witt v. Massachusetts Bonding & Ins. Co. (Tex. Civ. App.) 283 S. W. 588.

"In the first case, Heid Bros., Inc. undertook to hold venue of the suit against Browne in El Paso County under and by virtue of exception 5. The facts of that case are quite similar to the facts involved in the instant case, and the testimony admittedly showed a written contract to deliver the oats in El Paso County, but the court reached this conclusion on the testimony:

"`This contention is sound, but showing such contracts alone does not discharge the burden imposed upon appellee of showing venue in El Paso County.

"`It was incumbent upon appellee, not only to prove such written contracts, but also to prove prima facie a breach thereof.'

"The two authorities last cited clearly sustain the defendant's contentions.

"From the excerpt above taken from the plaintiff's brief it appears to be conceded that there was introduced upon the trial of this plea of privilege no evidence of the breach of the written contract, etc. After an examination of the testimony we conclude that, although a written contract by the defendant, performable in Dawson County, is established by the testimony, there is no evidence that the contract was breached; that is, there is no evidence that the cottonseed purchased for planting purposes was impregnated with cockle-burs and therefore valueless to the plaintiff, or of less value to him than the seed contracted for would have been.

"Plaintiff's petition, however, contains sufficient allegations to constitute a basis for recovery of the damages claimed, and each of the litigants, in making his respective contentions herein, does so in view of the opinion of our Supreme Court in Marcus v. Armer, 117 Tex. 368, 5 S.W.(2d) 960, 60 A. L. R. 672, to the effect that goods sent shipper's order, bill of lading and draft attached, notify purchaser, etc., evidences a written obligation of seller to deliver the contemplated product to the purchaser who takes up the draft, receives the bill of lading and the shipment of goods by virtue thereof, etc.

"Whether the record be viewed from the standpoint of exception 5 or exception 23, it is barren of any testimony disclosing damages. From the cases above cited, as well as others to be found in the briefs of the respective parties, it is apparent that there is conflict and much confusion in the authorities as to what is necessary to be proved on the trial of a plea of privilege to enable the plaintiff to sustain venue in a county other than the defendant's residence, under exceptions 5 and 23 to the general venue statute. This court was inclined to the view that it was only necessary to show the existence of the written contract performable in such county, as held in the Davis and Pittman cases first above cited. Therefore, in view of the present state of the authorities on the question, and under the pleadings and testimony detailed, all of which are referred to and made a part of this certificate, we desire to propound to Your Honors the following questions:

"First: The pleadings and the testimony being sufficient to show that the defendant, at the time of entering the contract with the plaintiff, and at the time of the shipment and delivery of the cottonseed, was a corporation, and that the cause of action, if any, arose, in part at least, in Dawson County, Texas, was it necessary in the trial on the plea of privilege for the plaintiff to go further under exception 23 and prove the elements of the lawsuit entitling him to a recovery, including the damages claimed to accrue to him from the alleged breach of the contract?

"Second: Under the record above set out, and under the circumstances set forth in the above question, and in view of the claim of venue under exception 5, was it incumbent upon the plaintiff, not only to prove such written contract, but also to prove a breach thereof in order to sustain venue under said exception?"

The second question will be answered first. Article 1995, R. S., provides that "no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile. * * *" To this general statutory rule some thirty exceptions are made and set out in as many different subdivisions of the article. The provision of the article as it relates to subdivision 5 is that no person shall be sued out of the county where he is domiciled, unless he "has contracted in writing to perform an obligation in a particular county."

Distinction should be noted at the out-set between a trial upon a plea of privilege and a trial upon the merits of a case. The former is to determine whether the complaining defendant is suable on the transaction involved, where plaintiff filed the suit; the latter to determine defendant's liability on the transaction. The language of article 1995 is that "no person * * * shall be sued out of the county" of his domicile unless, etc. (Italics ours.) It does not contemplate that on a hearing on plea of privilege any matters shall be tried other than such as are necessary to determine whether defendant is suable where the suit is filed. Article 2007, R. S., provides that, if plaintiff desires to resist the plea of privilege, he shall file a controverting plea under oath, setting out specifically the facts "relied upon ...