Geo. S. Allison & Sons v. Hamic

• Decision Date: 23 April 1924
• Docket Number: (No. 454-3962.)
• Citation: 260 S.W. 1037
• Parties: GEO. S. ALLISON & SONS v. HAMIC et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

260 S.W. 1037

GEO. S. ALLISON & SONS v. HAMIC et al.^*

(No. 454-3962.)

Commission of Appeals of Texas, Section B.

April 23, 1924.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Geo. S. Allison & Sons against John T. Hamic and another. An order overruling defendants' plea of breach was refused, and the case was ordered transferred by the Court of Civil Appeals (247 S. W. 918), and plaintiffs bring error. Affirmed.

C. R. Sutton, of Marfa, Blanks, Collins & Jackson, of San Angelo, for plaintiffs in error.

Mead & Metcalf, of Marfa, for defendants in error.

STAYTON, J.

Hamic and others contracted in writing to install for Geo. S. Allison & Sons two water tanks fitted with drinking troughs, warranting against leakage and unsatisfactory service. This suit was brought for damages by reason of an alleged breach of the warranty, and, a plea of privilege having been urged by defendants and carried with the case, venue was, by the final judgment, sustained in Pecos county, in which none of the parties resided or had their domicile. The judgment was reversed by the Court of Civil Appeals. 247 S. W. 918.

In the written contract there was no express or implied mention of the place or county of performance of defendants' obligation. However, at the time of its execution, the parties contracted orally that it was to be performed in Pecos county, where plaintiffs had their ranch and live stock. The parties concede that, in so far as the parol negotiations and the circumstances were concerned, the obligation of defendants was necessarily performable in the county and on the ranch mentioned. The application for writ of error was granted because of alleged conflicts between the decision of the Court of Civil Appeals granting the plea of privilege and other decisions presently mentioned.

No doubt is had as to the correctness of the disposition of this case below, upon the grounds stated by Justice Walthall. The general statutory rule is that no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile. The exception to it that is invoked by plaintiff is that, "where a person has contracted in writing to perform an obligation in any particular county," suit may be brought either in that county or in the county of defendant's domicile. R. S. art. 1830, subd. 5.

When this statute was first enacted, the exception omitted the words "in writing," but in other respects was the same. The evident purpose of the change was to reduce to certainty, and not leave to the uncertainty of mere recollection or, in some instances, to false testimony, the designation of the place of performance of any obligation that might become the subject of suit. There was no purpose in view as to contracts or obligations in general. The matter of what contracts and obligations should be in writing had already been regulated by the statute of frauds. The occasion of the amendment to the venue statute could only have been to insure that, as to any contract or obligation, whether it be written, or partly written and partly unwritten, the obligor should have the right of not being sued outside the county of his domicile, unless his obligation was by the terms of the contract performable in another county and was performable in another county, moreover, because of a written engagement to that effect.

It has been settled that "this is an exception to a general rule and must be construed as such," that in order to avail himself of it, plaintiff "must bring his case clearly" within it, and that the writing "should plainly provide that the obligation for the breach of which the defendant is sued is to be performed in a county different from that in which the defendant resides." Cohen v. Munson, 59 Tex. 236; Holloway v. Blum, 60 Tex. 628; Lindheim v. Muschamp, 72 Tex. 35, 12 S. W. 125; Behrens, etc., Co. v. Hamilton, 92 Tex. 287, 48 S. W. 5; Lasater v. Waits, 95 Tex. 555, 68 S. W. 500. And it has been equally settled that this provision, while it must be plainly present in the writing, may be either stated expressly, as by naming the county of performance, or stated through necessary implication, as by naming a place that is to be found only in a particular county. The holding of the Court of Civil Appeals in the present case was that the suit could not be maintained in Pecos county, unless the written portion of the contract contained an express agreement on the part of defendants to perform the contract in that county or contained such reference, statement, or terms as that the court might be able to say that the written portion of the contract necessarily imputed an obligation to perform in that county. This holding accords with the law as the Supreme Court has construed it in the cases already mentioned and with the decisions of each of the eight Courts of Civil Appeals, beside the court below, that had been organized at the time of this judgment. Kellner v. Ramdohr (Tex. Civ. App.) 207 S. W. 169; Valdespino v. Dorrance (Tex. Civ. App.) 207 S. W. 651; Harris v. Moller (Tex. Civ. App.) 207 S. W. 963; Burkitt v. Berry (Tex. Civ. App.) 143 S. W. 1187; Mahon v. Cotton, 13 Tex. Civ. App. 239, 35 S. W. 869; Cogdell v. Ross (Tex. Civ. App.) 243 S. W. 560; Gaddy v. Smith (Tex. Civ. App.) 116 S. W. 164; Strawn Merchandise Co. v. Texas Grain Co. (Tex. Civ. App.) 230 S. W. 1094; Mendenhall v. Brown (Tex. Civ. App.) 252 S. W. 241; Russell v. Green (Tex. Civ. App.) 214 S. W. 448; Pittman & Harrison Co. v. Robey & Co. (Tex. Civ. App.) 234 S. W. 1115; Ogburn, etc., Co. v. Taylor, 59 Tex. Civ. App. 442, 126 S. W. 52; Davis v. Gouldy (Tex. Civ. App.) 243 S. W. 715; Jordan v. West Texas Gin Co. (Tex. Civ. App.) 242 S. W. 543.

The plaintiffs contend that, if the contract was necessarily performable in Pecos county, venue lay in that county, whether there was written expression or implication in the contract leading to that conclusion or not, and cite as sustaining their view, and hence, as conflicting with the decision of the Court of Civil Appeals, a number of cases for the most part following Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399. In considering these cases, it must first be noted that the decision in Seley v. Williams was that, where a written contract states the town of performance, it gives the option of venue in the county in which the town is situated because:

"If the contract be in writing, and must necessarily be executed in a county different from that of the domicile of the party contracting, then for breach of the contract he may be sued in either of these counties."

To this effect Justice Pleasants' opinion in that case was preceded by Yeager v. Focke, 6 Tex. Civ. App. 542, 25 S. W. 663, and was followed by Bell Co., etc., v. Cox, etc., 33 Tex. Civ. App. 292, 76 S. W. 607, Callender, etc., v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366, and Presnall v. Adams (Tex. Civ. App.) 214 S. W. 357, and (as to quarries already opened) by Darragh v. O'Connor (Tex. Civ. App.) 69 S. W. 644. The remaining cases cited by plaintiffs proceed from the same principle, but apply it to situations where the place was to be determined as a matter of written contractual right after the execution of the contract. Darragh v. O'Connor (Tex. Civ. App.) 69 S. W. 644 (as to quarries not yet opened), and County School Trustees v. Wagner (Tex. Civ. App.) 242 S. W. 532.

No opinion is necessary or is expressed here as to whether what was decided to be a written obligation in each of these cases was actually part of the contract in suit, as to whether the necessary implication as to the county of performance properly followed in each of the cases from the writing, nor as to, whether the fixing of the county of performance, as in the latter...