McCray Refrigerator Co. v. Simms

• Decision Date: 24 December 1924
• Docket Number: (No. 7254.)
• Citation: 268 S.W. 275
• Parties: McCRAY REFRIGERATOR CO. v. SIMMS.
• Court: Texas Court of Appeals

268 S.W. 275

McCRAY REFRIGERATOR CO. v. SIMMS.

(No. 7254.)

Court of Civil Appeals of Texas. San Antonio.

December 24, 1924.

Rehearing Denied January 21, 1925.

Appeal from Bexar County Court; McCollum Burnett, Judge.

Action by the McCray Refrigerator Company against W. E. Simms. From a judgment granting defendant's plea of privilege, plaintiff appeals. Reversed and rendered.

Victor Keller and Clifford Davis, both of San Antonio, for appellant.

J. D. Moore, of Austin, for appellee.

FLY, C. J.

This is a suit on a promissory note and contract for $790, instituted by appellant against appellee. The latter pleaded his privilege to be sued in Travis county, which plea was controverted by appellant. The court granted the plea, and from the judgment to that effect this appeal has been prosecuted.

The facts are that appellee is a resident of Travis county, and resided there before, at the time and since this action was begun; that on March 3, 1922, he executed and delivered to appellant, a private corporation, a certain contract containing an agreement that "in default of two payments this account becomes payable in San Antonio, Tex." Appellee made default in three payments, due respectively February 22, 1923, March 22, 1923, and April 22, 1923. A lien was retained on certain goods and chattels in Travis county of the value of $350, and appellant sought to foreclose a lien given in the contract on said goods.

It is not alleged in the petition that there had been default in two payments, but in the controverting affidavit it was stated that appellee had got into arrears on three monthly payments due respectively on February 22, March 22, and April 22, 1923, and payment was made of the amounts due on April 28, 1923. Under the terms of the contract, when default was made in the payments of February and March, 1923, the agreement that "in default of two payments this account becomes payable in San Antonio, Tex.," became a part of the contract, just as much so as though it had been written in the contract, this amount is payable in San Antonio, Tex. Southern Plow Co. v. Dunlap Co. (Tex. Civ. App.) 221 S. W. 1020. Becoming a part of the contract, as it undoubtedly did, it was a part of the contract when this suit was instituted, unless it was removed from the contract by an acceptance after the default of the amounts due at that time. The promise to pay, in case of a failure to pay two installments, in Bexar county is positive and unconditional; not...