Ferrier v. Caprock Machinery Co.

• Decision Date: 25 September 1961
• Docket Number: No. 7081,7081
• Citation: 350 S.W.2d 224
• Parties: Mack FERRIER et al. v. CAPROCK MACHINERY COMPANY
• Court: Texas Court of Appeals

Page 224

350 S.W.2d 224

Mack FERRIER et al. v. CAPROCK MACHINERY COMPANY

No. 7081.

Court of Civil Appeals of Texas, Amarillo.

Sept. 25, 1961.

Culton, Morgan, Britian & White, Amarillo, L. A. White and Neal R. Allen, of counsel, Amarillo, for appellants.

E. Byron Singleton, Amarillo, for appellee.

CHAPMAN, Justice.

This is a venue appeal.

Appellee, Caprock Machinery Co. sued appellants, Mack Ferrier, Otto Ferrier and Ferrier Brothers in the District Court of Potter County for payment for repairs alleged to have been made for them on appellants' truck crane. Appellants filed their plea of privilege to be sued in Baylor County where both of the Ferrier brothers reside and have their principal place of business. Appellee controverted, seeking to maintain venue in Potter County under sub-section 5, of Art. 1955 which provides:

'5. Contract in writing.--If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile. As amended Acts 1935, 44th Leg., p. 503, ch. 213, Sec. 1.'

Before discussing the substantive law we shall dispose of a procedural point raised by appellee in its argument under certain of its counterpoints. If we understand its brief it argues that where the record before us shows no objections or exceptions to the trial court's findings, such findings must be accepted by us. Our Supreme Court has held otherwise. In Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 that court said: 'There is nothing in the rules which provides that in a case tried before the court without a jury its findings of fact are conclusive on appeal when a statement of facts appears in the record.' See also Durham v. Ft. Worth Tent & Awning Company, Inc., Tex.Civ.App., 271 S.W.2d 181 and Preston State Bank v. Finberg, Tex.Civ.App., 305 S.W.2d 654. These cases are not venue cases but our Supreme Court in a venue case has said, '* * * the power of the Court of Civil Appeals in reviewing the fact findings of the trial court is the same as it is in any other appealed case.' Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95. We accordingly hold that appellants are not precluded from challenging in this court findings made by the trial judge simply because they did not file in the trial court an exception to the findings, there being a statement of facts before us and the brief of appellants having challenged the material findings of fact. ¹ If this court has heretofore held to the contrary such holding is hereby overruled.

Appellants ordered a T-24 Michigan Truck Crane from Clark Equipment Company, the manufacturer, through appellee, a distributor for Clark Equipment Co. The transaction was made by a purchase order prepared by appellee on its printed form and signed by appellants. The purchase order described the equipment in detail, named the implement traded in as a down payment and showed the value allowed on the tradein implement. It also showed the purchaser as Ferrier Bros., P.O. Box 1079, Seymour, Texas, and that it was to be shipped to 'F.O.B.--Wheeler, Texas.' The purchase order also provided, 'Payable to Caprock Co., Amarillo, Texas, as follows: Cash _____ Trade Allowance _____ Balance to finance _____ Final Charge _____ Total _____ Payable in _____ Equal monthly payments of _____ each and one monthly payment of first of which is due _____ and following payments due on the same day of each succeeding month.'

As is readily observable, the paragraph just quoted provides: 'Payable to Caprock Co., Amarillo, Texas, as follows:' ² [and if material at all it is not material to the obligation here sought to be enforced.] But none of those blank spaces were filled in. The purchase order also contains printed provisions dealing with insurance, manufacturer's price changes, contingencies over which seller had no control, warranty, etc. including a statement that new machinery covered by the order was governed by the manufacturer's warranty, and that in the event of failure during the warranty period Caprock Equipment Co. would assist appellant in obtaining the necessary adjustments. This purchase order is one of the instruments relied on by appellee to sustain venue in Potter County.

As may be seen from the instrument, there is not anything in it that imposes upon appellant any obligation to pay for repairs [the obligation sought to be enforced] either in Amarillo, in Potter County, or any other designated place.

Our Supreme Court has said, '[such]...