Oliver v. Henley
| Decision Date | 17 October 1929 |
| Docket Number | (No. 808.) |
| Citation | 21 S.W.2d 576 |
| Parties | OLIVER v. HENLEY. |
| Court | Texas Court of Appeals |
Appeal from Limestone County Court; H. F. Kirby, Judge.
Suit by P. W. Henley against J. R. Oliver. From a judgment overruling defendant's plea of privilege, defendant appeals. Affirmed.
Ira Lawley, of Groesbeck, and James D. Buster, of Sherman, for appellant.
L. W. Shepperd, of Groesbeck, for appellee.
This suit was filed by appellee, a resident of Limestone county, Tex., against appellant, a resident of Grayson county, Tex., to recover damages, which appellee claimed he suffered by reason of a breach of a contract, by the terms of which appellant agreed to ship and deliver to appellee in Limestone county, Tex., certain cotton seed which were represented to be sound and 92 per cent. of which would germinate and grow when planted, etc., and that he (appellee) did plant same, and that said seed were inferior, defective, and that only about 10 per cent. of same germinated or came up; that, by reason of said breach of said contract, appellee sustained damages in the sum of $572.50. Appellant filed his plea of privilege to be sued in Grayson county, the county of his residence. Appellee controverted said plea of privilege, alleging, in substance, his cause of action came under subdivision or exception 5 of our general venue statute (Rev. St. 1925, art. 1995, subd. 5), in that said contract on the part of appellant was to be performed in Limestone county, Tex. On the hearing of said plea of privilege the court overruled same, from which action of the court the appellant has duly appealed.
As we view this record, there is only one question involved, to wit: Was there a contract in writing between the parties obligating appellant to deliver the cotton seed as described in contract, to appellee in Limestone county, Tex.? The record shows the following appeared in the Semi-Weekly Farm News, Dallas, Tex., of Friday, March 2, 1928: Just below the above, in the same issue of said paper, follow recommendations of J. R. Oliver and the cotton seed he offered for sale by the Planters' Gin Company, also by the First National Bank, and also by the Planters' National Bank, all of Whitewright, Tex. Appellee testified that he saw the above advertisement and offer of J. R. Oliver in the Semi-Weekly Farm News of March 2, 1928, and also read same in the Farm and Ranch, of same date, and said further:
Appellee testified further that he received copies in Limestone county, Tex., of both the Semi-Weekly Farm News and the Farm and Ranch; that he read the advertisement in both said papers and relied upon said statement made by J. R. Oliver; that
The letter above referred to is as follows:
Appellee testified further that he planted the seed at the proper time in well-prepared soil and only 10 per cent. of the seed came up, etc. Attached to each of said six sacks of cotton seed was a tag. On the front side of this tag was the following:
"3 Bushels — 96 pounds
Name or kind ................................ Mebane
Purity (not varietal) ....................... 99.5%
Inert matter ................................ 4-10 of 1%
Other commercial seeds ...................... none
Weed seeds .................................. none
Germination average ......................... 92%
Live seeds (approx.) ........................ 92%
Grown in .................................... Texas
"Tested by Department of Agriculture of Texas on
December 6, 1927. From J. R. Oliver, Producer of Improved
Farm Seed and Breeder of Registered Duroc
Jersey Hogs
"Whitewright, Texas."
The following was on the reverse side of the tag:
"Percy W. Henley
Kosse, Texas,
P. O. Thornton,
R. 4, B. 86."
Appellant testified, in part, as follows:
While a large part of the advertisement and recommendations are intended only to portray the good qualities of appellant's pedigreed cotton seed, and appellant's good standing as an honest, reliable man, yet appellant does offer to ship sacks of 3 bushels each, freight prepaid, to any point in Texas for $4 per sack, said sack tagged according to our state seed laws; or, at said price per sack of 3 bushels, he offered to ship same C. O. D. to any point in Texas, subject to inspection. Appellee evidently understood the notice he read to be an offer to sell, giving a full description of the seed, the price per sack of 3 bushels, duly tagged, to be shipped freight prepaid to any point in Texas. Appellant evidently understood appellee's letter of March 12, 1928, inclosing his check and instructing appellant to ship the 18 bushels to appellee at Kosse, Tex., to be an acceptance of his offer to sell, as same appeared in the papers above referred to, for appellant without any further communication, shipped the six sacks of 3 bushels each to appellee at Kosse, Tex., freight prepaid. We think the offer, as same appeared in the papers, was intended by appellant not only to get his pedigreed seed and the good qualities of same before the farmers of Texas, but also to make quick sales of same without further communication. His offer was clear, definite, and explicit, left nothing open for negotiation. Both parties, we think, understood his statement in the paper as an offer, for the price and on the terms stated, to sell and deliver the seed described, freight prepaid, to any point in Texas. Both parties acted upon and treated it as such. While the offer to sell for the price and on the terms therein stated by appellant, as the same appeared in the paper, was not addressed to appellee, but was, we think, addressed to, and intended for any one who might accept said offer, and when appellee by his letter accepted said offer, said offer as contained in the paper and appellee's letter accepting same, constituted a contract in writing, performable in Limestone county. Appellant's advertisement...
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