Ohio Oil Co. v. Varner

• Decision Date: 22 March 1941
• Docket Number: No. 13010.,13010.
• Citation: 150 S.W.2d 185
• Parties: OHIO OIL CO. v. VARNER.
• Court: Texas Court of Appeals

150 S.W.2d 185

OHIO OIL CO. v. VARNER.

No. 13010.

Court of Civil Appeals of Texas. Dallas.

March 22, 1941.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Suit for breach of alleged verbal contract by Fred C. Varner against the Ohio Oil Company. From a judgment overruling defendant's plea of privilege to be sued in Harris county, the defendant appeals.

Reversed and remanded.

Head, Dillard, Maxey-Freeman & McReynolds, of Sherman, and William Pannill and John L. Camp, both of Houston, for appellant.

Webb & Webb and Fred C. Varner, Jr., all of Sherman, for appellee.

LOONEY, Justice.

This appeal is from a judgment overruling appellant's plea of privilege to be sued in Harris County. The suit was filed by Fred C. Varner, appellee, who, previously, had served appellant at Sherman, Grayson County, as distributor of petroleum products, operating under a written contract, on a commission basis.

Appellee contested the plea of privilege, contending that the court had venue of the cause under Subds. 5 and 23 of Art. 1995, R.C.S., Vernon's Ann.Civ.St., alleging "That heretofore, to-wit, on or about the 1st day of March, 1936, plaintiff and defendant entered into a written contract by virtue of which plaintiff should purchase from the defendant kerosene and gasoline, delivery at Sherman, Grayson County, Texas, said contract renewed and amended by one dated the 1st day of March, 1937." (The allegation that "plaintiff should purchase," obviously was a lapsus linguae, as the written contract introduced shows that plaintiff was a distributor and not a purchaser.) "That under and by virtue of the terms of said contract, the plaintiff was to receive gasoline and kerosene in Sherman, Grayson County, Texas. That said products were to be sent from stations in Fort Worth, Tarrant County, Texas. That on or about November 1, 1936, defendant, its agents and employees, duly authorized, requested plaintiff to accept the gasoline and kerosene at its refinery in Fort Worth, Tarrant County, Texas, with the understanding that adjustments would be made in the future, adjusting the losses occasioned by reason of the said products being hot at the refinery, and with the understanding and agreement that plaintiff should be paid the amount that the products would shrink by reason of being hot at the refinery, and before ready for sale by retail or wholesale. That plaintiff took said property as issued at the refinery. That between the dates of November 1, 1936, and November 1, 1937, the loss in gasoline and kerosene by virtue of being hot and received at the refinery was One Thousand Six Hundred Forty Seven & 7/100 ($1,647.07) Dollars. That plaintiff made demand upon defendant for payment of this amount, and defendant wholly failed and refused to pay same or any amount thereof, to plaintiff's damage in the sum of One Thousand, Six Hundred Forty Seven & 7/100 ($1,647.07) Dollars." Appellee set out Subds. 5 and 23 of Art. 1995, R.C.S., alleged specifically that, appellant had an agent in Grayson County, but failed to allege any fact or facts, showing that the cause of action, or a part thereof, arose in Grayson County.

Hearing on the contest was set for October 28, 1938, but, on that day, the court entered the following order: "On this day hearing on the plea of privilege is passed by agreement of all parties." At the subsequent term, the court entered the following order: "On this day (Jan. 3, 1939) this cause is continued for the term without prejudice to defendant's plea of privilege." At the next term, the court entered the following order: "On this day (August 12, 1939) this cause is continued for the term without prejudice to defendant's plea of privilege." At the next term, the court heard evidence, sustained the contest, and overruled appellant's plea of privilege, from which this appeal was prosecuted.

When the contest was taken up for hearing, appellant objected, contending that the court lost jurisdiction for all purposes, except to enter an order transferring the cause to a court of proper jurisdiction in Harris County. This contention being overruled, appellant assigned error.

As heretofore shown, at the first term of court, the contest was passed by agreement of all parties, and at the two succeeding terms, the cause having been continued without prejudice to the plea of privilege, the presumption must be indulged that these orders were entered for reasons authorized by law. See Dorroh v. McKay, Tex.Civ.App., 56 S.W. 611; Gregg v. De Shong, Tex.Civ.App., 107 S.W.2d 893, 899.

We do not think venue can be maintained under Subd. 5 of the venue statute, because the suit was not based upon the breach of any provision of the written contract, but upon the breach of the alleged verbal contract. The written contract provides that such petroleum products as appellee deemed necessary to supply the trade, were to be shipped as ordered, and delivered to him at Sherman; later, according to appellee's allegation, an agreement was entered into whereby appellee received delivery of gasoline at appellant's refinery in Fort Worth, Tarrant County, and after being thus delivered, was hauled by appellee to Sherman, placed in a proper receptacle, and later sold to the trade. It being discovered that gasoline, delivered hot at the refinery, would shrink in the process of cooling, and to take care of this shrinkage and save appellee harmless from loss incident thereto, the parol agreement —upon which he based his cause of action —was entered into. These facts forbid the idea that venue can be maintained under Subd. 5 of Art. 1995.

Although, in his contesting plea, appellee alleged that the court below had venue under Subd. 23 of Art. 1995, setting out the subdivision in extenso, we do not think venue can be maintained in Grayson County on the idea that appellant had an agent there, because no proof was offered to that effect; and furthermore, he failed to allege any fact or facts showing or tending to show that the cause of action declared upon, or any part thereof, arose in Grayson County. His allegations in this respect being mere conclusions, as repeatedly held, were insufficient to present the issue. See Bramblett v. Roby State Bank, Tex.Civ.App., 67 S.W.2d 450; Faught v. Cloud, Tex.Civ.App., 131 S.W.2d 137. However, the proof was clear and undisputed to the effect that the parol agreement—the alleged breach of which constituted appellant's cause of action— was made in Grayson County; also was breached there; either fact being sufficient, under Subd. 23 of Art. 1995, to confer venue on the court below, if properly pleaded.

Within the meaning of Subd. 23, a cause of action against a private corporation for the breach of a contract consists of the contract itself and its breach, hence suit may be maintained...