Lummus Cotton Gin Sales Co. v. Mills

• Court: Texas Court of Appeals
• Writing for the Court: Lane
• Citation: Lummus Cotton Gin Sales Co. v. Mills, 233 S.W. 126 (Tex. App. 1921)
• Decision Date: 12 May 1921
• Docket Number: (No. 8065.)
• Parties: LUMMUS COTTON GIN SALES CO. v. MILLS.

233 S.W. 126

LUMMUS COTTON GIN SALES CO. v. MILLS.

(No. 8065.)

Court of Civil Appeals of Texas. Galveston.

May 12, 1921.

Rehearing Denied June 2, 1921.

Appeal from District Court, Brazoria County; M. S. Munson, Judge.

Action by Minnie Mills against the Lummus Cotton Gin Sales Company. From a judgment overruling defendant's plea of privilege, it appeals. Affirmed.

Spence, Haven & Smithdeal, of Dallas, for appellant.

Rowe & Kay, of Houston, and W. W. Campbell, of Lubbock, for appellee.

LANE, J.

This is an appeal from an order of the district court of Brazoria county, overruling the plea of privilege of the Lummus Cotton Gin Sales Company, a Texas corporation domiciled at Dallas, Tex., hereinafter called the Gin Company, filed in a suit brought by Minnie Mills, a resident of Brazoria county, against it in said district court. The plaintiff alleged that on or about the 28th day of June, 1919, she and the defendant Gin Company entered into a contract, in Brazoria county, Tex., by the terms of which the Gin Company contracted and agreed to sell and deliver to her certain gin machinery in said county, and for which she agreed to pay the agreed contract price therefor, and that the Gin Company failed and refused to deliver said machinery, to her damage in the sum of $2,586.

The Gin Company filed its plea of privilege to be sued in the county of its domicile. It was alleged therein "that none of the exceptions to exclusive venue in the county of one's residence, mentioned in articles 1830 and 2308 of the Revised Statutes, existed in this cause." This plea was duly verified as required by law. Minnie Mills contested this plea, and, among other things, alleged that the contract in question was made in Brazoria county.

It was shown upon the hearing of the contest of the plea of privilege that one H. C. Miller, an agent of the Gin Company, who was, as such agent, authorized to make sales of gin machinery and take orders therefor, subject to the approval of the Gin Company, went to Brazoria county and there sold to the plaintiff, Minnie Mills, the gin machinery in question, subject to the approval of the Gin Company; that he took the written order of Minnie Mills therefor, and forwarded the same to the Gin Company at Dallas, Texas, and that in a few days thereafter the Gin Company approved the contract so made with Minnie Mills by its agent, H. C. Miller, and accepted the order for same by letters which read as follows:

                      "June 30, 1919
                

"Minnie Mills, Anchor, Texas — Dear Madam: We acknowledge with pleasure receipt of your order of June 28th, covering cotton gin machinery, tendered us through our representatives, H. C. Miller & Son. Your order has been passed to our credit and mechanical departments, and they will write you further and more fully with reference to same.

   "Thanking you, we are yours truly."
                              "Dallas, Tex. July 23, 1919
                

"Minnie Mills, Anchor, Texas — Dear Madam: Referring to your valued order for ginning machinery, we are gratified to state that your references are found most...