Johnston v. Personius
| Decision Date | 19 September 1951 |
| Docket Number | No. 12306,12306 |
| Citation | 242 S.W.2d 471 |
| Parties | JOHNSTON et al. v. PERSONIUS. |
| Court | Texas Court of Appeals |
Irving G. Mulitz, Houston, for appellant.
Harold Alberts, Corpus Christi, for appellee.
Appellee, C. G. Personius, sued F. A. Johnston, Jr., and F. A. Johnston, Sr., in the County Court of Nueces County, for an alleged breach of a written contract to deliver to appellee a pre-fabricated house, and appellants have appealed from an order overruling their pleas of privilege to be sued in Harris County where they reside. Appellee's controverting affidavit to the pleas of privilege stated that appellee, Personius, sought recovery of damages for breach of the contract, and, in the alternative, sought a refund of the amount appellee advanced on his contract. Appellee in the trial below and here relies upon Section 5 of Article 1995, Vernon's Ann.Civ.St., as the exception granting his right to sue appellants outside of their domicile. Appellants are entitled to defend the case in Harris rather than Nueces County unless, as the law plainly states, appellee shows that the appellants have 'contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing * * *.'
Appellee undertook to prove that appellants had executed such a writing and introduced in evidence a document signed by the parties to this suit. This document consists of an ineptly drawn form containing blanks, some of which are unfilled, and some of which are filled by the insertion of words that should properly be in other blanks on the form. It hardly states more than the names of the parties, the receipt of $100 down payment for the pre-fabricated house, an obligation to pay an additional $4,550 on terms not revealed by the document, and the address of the appellee. The first two sentences of the document contain everything upon which appellee may rely to constitute compliance with Section 5, and they state:
'This agreement made and entered into by and between the Delta Building Company of Corpus Christi, Texas, and C. G. Personius, Address 1603 Palm Dr. Phone 23168 of Corpus Christi, Texas.
'We, the Delta Buildings Company of Corpus Christi, Texas, in consideration of $4550.00, hereby agree to sell and deliver to the above mentioned 25 X 37 with offset who agrees to buy a pre-fabricated building size _____.'
The obligation appellee relies upon as performable in Nueces County is the one to deliver...
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