Miller Cattle Co. v. Mattice

• Decision Date: 27 April 1931
• Docket Number: Civil 2980
• Citation: 38 Ariz. 180,298 P. 640
• Parties: MILLER CATTLE COMPANY, a Corporation, Appellant, v. J. W. MATTICE and W. B. MATTICE, Doing Business Under the Name and Style of J. W. MATTICE & SONS, Appellees
• Court: Arizona Supreme Court

298 P. 640

38 Ariz. 180

MILLER CATTLE COMPANY, a Corporation, Appellant, v. J. W. MATTICE and W. B. MATTICE, Doing Business Under the Name and Style of J. W. MATTICE & SONS, Appellees

Civil No. 2980

Supreme Court of Arizona

April 27, 1931

APPEAL from a judgment of the Superior Court of the county of Graham. Lee N. Stratton, Judge. Judgment reversed and case remanded, with instructions.

Messrs Kibbey, Bennett, Gust, Smith & Rosenfield, for Appellant.

Mr Benjamin Blake and Messrs. Mathews & Bilby, for Appellees.

OPINION

LOCKWOOD, J.

J. W Mattice and W. B. Mattice, doing business under the name and style of J. W. Mattice & Sons, hereinafter called plaintiffs, brought suit against Miller Cattle Company, a corporation, hereinafter called defendant, to recover a balance of $2,945 alleged by plaintiffs to be due them from defendant under the provisions of a certain written contract for the purchase and sale of range cattle. Plaintiffs reside in Graham county, and defendant is a corporation doing business and having an agent in Maricopa county. The contract was executed in Maricopa county, but specifically provided that the cattle were to be delivered in Graham county; that $12,500 of the purchase price was to be paid before any cattle were delivered, and the balance "when and as said cattle are delivered."

Defendant applied to the trial court to remove the case for trial to Maricopa county, alleging that it had no agent in Graham county, owned no property therein, and did not conduct any business in that county. Plaintiffs resisted the motion, and the trial court, after hearing the matter on affidavits and counter-affidavits, denied the application to remove. The case thereafter came on regularly for trial before a jury in the superior court of Graham county. The jury returned a verdict in favor of plaintiffs for the full sum prayed for, and, from the order overruling the usual motion for new trial and the judgment on the verdict, defendant has appealed.

The first question raised on this appeal is whether or not the case was tried in the proper county. It is claimed by defendant that its residence was in Maricopa county, and that it was entitled to be sued there unless the circumstances of the case brought it within the exceptions set forth in subdivisions 5 and 18 of section 3715, Revised Code of 1928. These subdivisions read as follows:

"5. Persons who have contracted in writing to perform an obligation in one county, may be sued in such county or where they reside."

* * * * * * * * *

"18. Actions against railroad companies, insurance companies, telegraph or telephone companies, joint stock companies and other corporations may be brought in any county in which the cause of action, or a part thereof, arose, or in the county in which the defendant has an agent or representative or owns any property or conducts any business."

Under the terms of the contract, it was the duty of the plaintiffs to deliver the cattle in question to defendant in Graham county while it was the duty of defendant to pay for them "when and as said cattle are delivered on board cars in good condition." Does this require payment in Graham county?

Defendant urges that our statute in this particular was taken from the state of Texas, and that such state has held under similar circumstances there is no implication that the payment should be made at the place of delivery. In the case of Burkitt & Barnes v. Berry, (Tex. Civ. App.) 143 S.W. 1187, the Court of Civil Appeals of Texas said:

"If an implied promise to pay in Angelina county is shown, this would not defeat defendants' right to be sued in the county of their residence. The agreement or promise to perform in a county other than that of the promisor's residence, in order to fix the venue in such county, must be in writing, and the right of a defendant to be sued in the county of his residence can only be defeated when the plaintiff brings his case clearly within the exception contained in the statute. Cohen v. Munson, 59 Tex. 237; Mahon v. Cotton, 13 Tex. Civ. App. 239, 35 S.W. 869; Russel & Co. v. Heitmann & Co., (Tex. Civ. App.) 86 S.W. 75."

In that case the only reference to payment for the goods sold was the language of the letter constituting the written contract: "Will accept 28 cents f.o.b. cars McNeal Switch for same," and the court held this language was used only to fix the price and not to designate the place of payment.

The rule above stated is doubtless correct under the circumstances of the case cited, but we are of the opinion the language in the contract in the case at bar is very different than that in the case just referred to, and that not only it may, but it must, be implied from the terms thereof that the payment is to be made in Graham county. The language of the Court of Civil Appeals of Texas in Cecil v. Fox, (Tex. Civ. App.) 208 S.W. 954, applies to the present situation. We quote therefrom as follows:

"Although a written contract may not plainly specify that it is to be performed in a certain place, yet if the contract, by its terms, leads to no other conclusion but that it is performable in that place, then jurisdiction will be given to that place.

"The case of Brick Co. v. Cox & Co., reported in 33 Tex. Civ. App. 292, 76 S.W. 607, in principle applies to this case and we think is decisive of it, and we quote from it as follows:

"'It will be seen that the contract does not, by express terms, upon its face provide for performance in Bell county. This, however, is not necessary in order to confer jurisdiction under the article above referred to. "It is held that the question to be determined is whether the legal effect and purport of the written instrument is that it should be performed in the county where the suit is brought." 1 Sayles' Tex. Civ. Prac., p. 256; Henry v. Fay, 2 Wills. Civ. Cas. Ct. App. §§ 834, 835. In the case of Seley v. Williams, 20 Tex. Civ. App. 405, 50 S.W. 399, it is said: "It is to be observed that exception 5 to article 1194 does not provide that the contract in writing shall, by express words, require performance of the contract in a particular county; but if the contract be in writing, and must necessarily be executed in a county different from that of the domicile of the party contracting, then, for breach of the contract, he may be sued in either of these counties." See, also, Ry. Co. v. Browne, 27 Tex. Civ. App. 437, 66 S.W. 343. We think the rule is correctly stated in the authorities cited. Applying them to the contract and the facts offered in evidence in this case, we are unable to escape the conclusion that the legal effect and purport of the contract, interpreted in the light of the circumstances surrounding the parties and attending its execution, contemplated a delivery of the oil by appellees in Bell county, Tex.'" (Italics ours.)

The venue of the case was therefore properly laid, and the court did not err in refusing to transfer it to Maricopa county.

The second and vital question before us is the construction of the written contract. The parts essential to an understanding of the precise point in question may be quoted as follows:

"Contract for Purchase and Sale of Cattle.

"This agreement, Made and entered into this 29th day of December 1927, by and between J. W. Mattice & Sons, of Pima, Arizona, hereinafter known as the sellers, and Miller Cattle Company, a corporation organized and existing under and by virtue of the Laws of the State of Arizona, with its principal place of business at Phoenix, Arizona, hereinafter known as the Buyer:

"Witnesseth as follows: For and in consideration of the prices herein mentioned, which have been mutually agreed upon by both parties to this contract, the Sellers hereby agree to sell and deliver f.o.b. cars in good shipping condition, at Ft. Thomas or Pima, Arizona, on the Southern Pacific Railroad, the following described cattle:

"About 300 heifer yearlings, one year old or over at $35.00 per head.

"About 400 head of yearling and two year old steers at $40.00 per head.

"About 25 head of bulls at $40.00 per head.

"About 50 head of three year old steers at $50.00 per head.

"About 1,000 head of cows at $40.00 per head.

"About 750 head of cows and calves at $50.00 per head. . . .

"It is hereby further agreed by the parties hereto that the first two deliveries will consist of dry cows, cows and calves, bulls and three year old steers only; and the third and fourth deliveries will consist of dry cows, cows and calves, heifer yearlings, steer yearlings, two year old steers and bulls; and the fifth delivery to consist of cattle of any classes in the above mentioned irons. All cattle delivered under this contract shall be full ages at the time of delivery and in the case of cows and calves it is agreed that there will be no calves offered for delivery which are too young to ship without loss. The Sellers further agree that they will be carefully handled so that the cattle will be finally delivered f.o.b. cars in good condition. . . .

"The Buyer further agrees to pay to the Sellers as a forfeit the sum of $12,000 on or about the 20th day of March, 1928, which together with the $500.00 paid on the date of signing this contract which sum aggregates the total sum of $12,500.00 constituting total forfeit, which sum was determined on the basis of a forfeit of $5.00 per head on 2500 head of cattle as herein above set forth.

"The Buyer further agrees to pay balance of purchase money when and as said cattle are delivered on board cars in good condition, and failing to do so they shall forfeit the total of the amount...