Harris & Beeman v. Koon, 15129

• Decision Date: 31 March 1950
• Docket Number: No. 15129,15129
• Citation: 229 S.W.2d 212
• Parties: HARRIS & BEEMAN, Inc. v. KOON.
• Court: Texas Court of Appeals

Page 212

229 S.W.2d 212

HARRIS & BEEMAN, Inc. v. KOON.

No. 15129.

Court of Civil Appeals of Texas, Fort Worth.

March 31, 1950.

Cecil Murphy, Gainesville, Wallace & Korth, and Fred L. Wallace, Fort Worth, for appellant.

Ray Winder, Gainesville, for appellee.

McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege.

The suit grows out of the sale by appellant and the purchase by appellee of an item of refrigeration equipment. On June 6, 1949, appellant, a corporation domiciled in Tarrant County, signed and mailed to appellee in Cooke County a written agreement to sell the equipment in question. On June 7, 1949, appellee signed the agreement in Cooke County, but wrote into it an additional provision and sent it bank to appellant in Tarrant County. Appellant accepted the agreement, as changed by appellee, in Tarrant County.

The written agreement provided that the equipment should be shipped to appellee at a named address in Gainesville, in Cooke County, and also contained the following provision, 'The cash price is F. O. B. Chicago.' It appears to be undisputed that this reference is to the city of Chicago, Illinois.

The machine was shipped to appellee, who paid the purchase price. Appellee brings the present suit, claiming damages in the following respects: $3,000 for profits lost by reason of the incapacity of the machine to do the work for which it was intended; $1,050 by way of recovery of the purchase price paid for the machine; and approximately $1,900 in other alleged damages not necessary to set out in detail. In substance the claim for damages is based on an alleged breach of the contract to deliver, in Gainesville, Cooke County, Texas, a machine of prescribed kind and capacity. Venue is sought to be maintained in Cooke County, where the suit was brought, under the provisions of Section 23 of Article 1995, as amended by Acts 1943, 48th Leg., p. 350, ch. 228, sec. 1, Vernon's Ann.Civ.St. art. 1995, subd. 23, which authorize suits against a private corporation to be brought in the county where the cause of action or part thereof arose.

Although appellee argues to the contrary, we must hold that the contract was made in Tarant County, not in Cooke County. Appellant first signed the contract in Tarrant County, and mailed it to appellee in Cooke County. If appellee had without qualification signed the contract in Cooke County, Cooke County would be treated as the county in which the contract was made, but since appellee wrote a new condition into the contract when he signed it, it must be held that he made a counter offer, and that the contract was not completed until the counter offer was accepted by appellant. Since the acceptance of the counter offer took place in Tarrant County, it follows that Tarrant County was the county in which the contract was made. 10 Tex.Jur., p. 43; Browning-Ferris Mach. Co. v. Thomson, Tex.Civ.App., 58 S.W.2d 183; King v. Kloh, Tex.Civ.App., 10 S.W.2d 1043, writ dismissed; Moore Bros. v. Kirkpatrick, Tex.Civ.App., 172 S.W.2d 135, 137.

In view of the provision in the contract that the machine was to be shipped f. o. b. Chicago, the obligation of appellant's part was not to deliver the machine in Cooke County, Texas, but to the carrier in Chicago. A similar situation was involved in Browning-Ferris Mach. Co. v. Thomson, supra, (58 S.W.2d 185) where the contract provided that the goods were to be shipped to Ballinger, Texas, 'Price FOB Factory.' The court said: 'There was no contract to deliver at Ballinger. The obligation of the seller was only to ship there. When the machinery was placed upon the cars at point of shipment, the seller had met every obligation imposed upon him, if the shipment as to quality and time met the requirements of the contract. If there was a breach of the contract, as regards...