Grayson Enterprises, Inc. v. Texas Key Broadcasters, Inc.

• Decision Date: 19 February 1965
• Docket Number: No. 3942,3942
• Citation: 390 S.W.2d 346
• Parties: GRAYSON ENTERPRISES, INC., Appellant, v. TEXAS KEY BROADCASTERS, INC., Appellee.
• Court: Texas Court of Appeals

Page 346

390 S.W.2d 346

GRAYSON ENTERPRISES, INC., Appellant, v. TEXAS KEY BROADCASTERS, INC., Appellee.

No. 3942.

Court of Civil Appeals of Texas, Eastland.

Feb. 19, 1965.

Rehearing Denied May 21, 1965.

Wagstaff, Alvis, Pope, Doscher & Charlton, Abilene, Douglas E. Bergman, Dallas, for appellant.

McMahon, Smart, Sprain, Wilson & Camp, Abilene, Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellee.

GRISSOM, Chief Justice.

Texas Key Broadcasters, Inc. sued Texes Telecasting, Inc. and Grayson Enterprises, Inc. in Taylor County. Grayson filed a plea of privilege seeking to have the case transferred to Dallas County, where it resides. Grayson's plea of privilege was overruled and it has appealed.

Texas Key Broadcasters, Inc., hereinafter called Broadcasters, contended that it was entitled to maintain the suit in Taylor County by virtue of the provisions of exception 5, Article 1995, that

'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 * * * in such county * * *.'

Broadcasters alleged that in December, 1960, it entered into a contract with Texas Telecasting wherein it leased to Broadcasters a micro-wave transmission system between Fluvanna, which is in Scurry County, and the transmitter site of KPAR, in Nolan County, which transmitter site was subsequently, by oral modification of that contract, changed to Taylor County; that in June, 1960, Telecasting and Broadcasters a micro-wave transmission system which Telecasting leased to Broadcasters a transmitter site in Nolan County and other real and personal property for one hundred twenty months; that Grayson acquired the rights and assumed all obligations of Telecasting. The contract leasing the micro-wave transmission system between Scurry and Nolan Counties is known as exhibit A. The contract leasing the transmitter site in Nolan County and other real and personal property is known as exhibit B. Both were attached to plaintiff's petition.

Broadcasters alleged that in paragraph 1 of exhibit A Telecasting agreed to operate and maintain said micro-wave system and make such repairs as were necessary to assure its continuous operation; that defendants breached said provision and failed to operate and maintain said micro-wave system and make such repairs as were necessary for its continuous operation; that by virtue of paragraph 3 of exhibit A defendants were required to make a diligent effort to repair and restore service on said system; that they breached that agreement; that defendants failed (a) to maintain a routine inspection and checking program of the micro-wave system at reasonable intervals; (b) to assign capable and skilled employees to checking and maintaining the system; (c) to promptly attend to restoration of service over said system when it was interrupted or impaired and (d) to keep standby engines in proper repair.

Broadcasters further alleged that by reason of the breach of said micro-wave lease contract consideration therefor had failed and Broadcasters was entitled to a rescission, or a termination thereof; that because of the inadequacy of the signal transmitted over said system and interruptions and failures, Broadcasters had been compelled to procure said signal from another source at a higher price and had thereby been damaged. It alleged that in paragraph 13 of exhibit A it was agreed that exhibits A and B were collateral and that any default by Broadcasters of the terms of one should constitute a default of the other. Broadcasters sought judgment cancelling the micro-wave lease or its termination in March, 1964. It also sought damages for breach of said micro-wave lease contract.

The micro-wave transmission system lease provided that Telecasting would lease to KPAR, (Broadcasters), a micro-wave transmission system between Fluvanna, Scurry County, at which point the signal of a Lubbock station would be picked up, and the then transmitter site of KPAR in Nolan County, and that Telecasting would operate and maintain said micro-wave system and make such repairs as were necessary to insure its continuous operation. Paragraph 3 of said lease provided that Telecasting would not be liable to KPAR for interruption of program transmission over said system caused by anything not under its control other than making a diligent effort to repair and restore service. Paragraph 13 provided that said contract was collateral to its lease of the transmitter site, shown by exhibit B, and that to guarantee performance of the transmitter site lease KPAR assigned to Telecasting the net proceeds of national sales. It further provided that any default 'by KPAR' (Broadcasters) of the terms of the micro-wave lease would be deemed a default of the transmitter site lease and that any default 'by KPAR' of the transmitter site lease would be deemed a default of the terms of the micro-wave system lease.

Exhibit B, the lease by Telecasting to Broadcasters of its transmitter site 'in Nolan County' and certain real and personal property stored or installed 'in Ablilene' shows a lease by Telecasting to Broadcasters of land in Nolan County on which the transmitter was located and certain properties stored or installed in a building in Abilene. It expressly excepted from the transmitter site lease the electronic equipment in the transmitter site building. The trnasmitter site lease was for one hundred and twenty months. Following approval of the Federal Communications Commission of a transfer of the license from the lessor to the lessee, the consideration to be paid for said transmitter site lease was $799,440.00, payable in one hundred and twenty installments.

In the lease of the transmitter site, exhibit, B, Telecasting whose obligations were assumed by Grayson, agreed to pay one-half of the cost of replacement of any major electronic equipment. Broadcasters agreed to furnish lessor space for its micro-wave transmission facilities in said transmitter site building 'located in Nolan County.' Paragraph (a) of Subdivision 7 of the transmitter site lease provided that, if it became necessary to remove the electronic facilities, then located in Nolan County, the parties would share equally the expense of its relocation. Paragraph (d) of the transmitter site lease, exhibit B is as follows: 'The terms and provisions of this lease are to be performed in Nolan and Taylor Counties, Texas.'

The contract the breach of which is the basis of Broadcasters' cause of action is the micro-wave system lease, exhibit A. Broadcasters contended that it could maintain the suit in Taylor County by virtue of exception 5, Article 1995. In answer to Broadcasters controverting plea, Grayson answered that the micro-wave system lease was not performable in Taylor County, but expressly provides for delivery of a micro-wave signal in Nolan County and that said lease was for a period of one hundred and twenty months from December 1, 1960; that said lease had not been modified in writing and that any oral modification could not be enforced because it was in contravention of the Statute of Frauds. Grayson contended the court erred in overruling its plea of privilege because Broadcasters failed to prove a contract in writing performable in Taylor County within exception 5, Article 1995, but, on the contrary, the micro-wave contract is in writing and expressly provides for delivery of a microwave signal in Nolan County.

The micro-wave lease expressly provides for a lease to Broadcasters of a micro-wave system between Scurry County and Nolan County. About five months before execution of the micro-wave lease, Telecasting had leased to Broadcasters its transmitter site and equipment. Broadcasters alleged an oral modification of said contract relocating the transmitter site in Taylor County and that defendants had recognized such relocation in writing; that the micro-wave system lease provided that defendants were to operate and maintain that system and make such repairs as were necessary to assure continuous operation to Broadcasters' transmitter and to make a diligent effort to repair and restore service on said system and, therefore, said contract was performable in Taylor County under exception 5. The transmitter site was moved to Taylor County in January, 1962. There is no instrument in writing modifying the micro-wave system lease, exhibit A. Exhibit B, the transmitter site lease, was modified by an oral agreement that the transmitter site should be moved from Nolan to Taylor County. To sustain venue...