Producers Grain Corp. v. Lindsay, 9146

• Decision Date: 23 July 1980
• Docket Number: No. 9146,9146
• Citation: 603 S.W.2d 326
• Parties: PRODUCERS GRAIN CORPORATION, Appellant, v. A. J. LINDSAY, Appellee.
• Court: Texas Court of Appeals

Page 326

603 S.W.2d 326

PRODUCERS GRAIN CORPORATION, Appellant, v. A. J. LINDSAY, Appellee.

No. 9146.

Court of Civil Appeals of Texas, Amarillo.

July 23, 1980.

Underwood, Wilson, Sutton, Berry, Stein & Johnson, Edward H. Hill and Don M. Dean, Amarillo, for appellant.

Crenshaw, Dupree & Milam, Max C. Addison, Lubbock, for appellee.

DODSON, Justice.

In the venue phase of this action, Producers Grain Corporation appeals from an order by the trial court overruling its plea of privilege. We affirm.

A. J. Lindsay instituted this action in Hale County, Texas, against Producers Grain Corporation. In this action, Mr. Lindsay seeks to recover damages from Producers Grain Corporation for its alleged breach of a cattle feeding agreement with Mr. Lindsay through its failure to properly feed, fatten, care for and maintain his cattle. In the alternative, Mr. Lindsay seeks damages for the negligence of Producers Grain Corporation and for its material misrepresentations to plaintiff, inter alia, as to the feeding and rations or mixtures of feed given to the cattle, as to the cost of feeding, and as to the manner of placing and handling the cattle. Producers Grain Corporation, a Texas corporation, filed its plea of privilege to be sued in Potter County, Texas, site of its principal office. In his controverting plea, Mr. Lindsay asserts venue in Hale County, Texas, under subdivisions 7, 9a and 23 of article 1995 of the Texas Revised Civil Statutes Annotated (Vernon 1964 & Vernon Supp. 1980).

Findings of fact and conclusion of law were not and need not be filed in this venue phase of the case. See Tex.R.Civ.P. 385(e). Thus, on appeal we must resolve every reasonable intendment in favor of the trial court's order overruling the plea of privilege. James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959).

The trial court sustained venue in Hale County under subdivisions 9a and 23 of article 1995. Subdivision 23 provides in part as follows:

Suits against a private corporation, association, or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose ; (emphasis added).

In his original petition which is attached and made a part of his controverting plea, Mr. Lindsay alleges, inter alia, a cause of action for breach of a feeding agreement and a cause of action for negligence. Thus, to sustain venue under subdivision 23 on his contractual theory of recovery, Mr. Lindsay must prove that a contractual duty was owed to him by Producers Grain and that such duty was breached which caused damages to him. See Employers Casualty Co. v. Clark, 491 S.W.2d 661, 662 (Tex. 1973); Alsup v. Pickens, 526 S.W.2d 266, 267 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ).

Producers Grain Corporation brings three points of error. By its first point, appellant contends the trial court erred in overruling its plea of privilege based on subdivision 23 because there is no evidence that Producers Grain breached any duty owed to Mr. Lindsay giving rise to a cause of action or part thereof in Hale County. In support of its position, the appellant argues that the contract between the parties "did not impose on the defendant any obligation or duty to feed plaintiff's cattle any special or particular feed or ration or to fatten the cattle to marketable condition within any particular period of time." In deciding this legal sufficiency challenge, we must consider only the evidence and the inferences tending to support the trial court's judgment and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

It is uncontroverted that there is no expressed written contract between the parties. Nevertheless, a contract implied in fact may be inferred from the attending circumstances surrounding the transaction. See Haws & Garrett General Contractors, Inc. v. Gorbett Brothers Welding Co., 480 S.W.2d 607, 609 (Tex. 1972); Marr-Piper Co. v. Bullis, 1 S.W.2d 572, 574-75 (Tex.Com.App. 1928, judgt. adopted). As stated by the court in Allen-Morrow Co. v. Liquid Carbonic Co., 27 S.W.2d 132, 135 (Tex.Com.App. 1930, judgt. adopted):

A contract implied in fact, or an implied contract in the proper sense, arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts, or, as it has been otherwise stated, where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract.

Accord, Marr-Piper Co. v. Bullis, supra, at 575. Furthermore, it is generally a question for the trier of fact to determine if a contract implied in fact is established by the attending circumstances of the case. See Haws & Garrett General Contractor, Inc. v. Gorbett Brothers Welding Co., supra, at 610.

The evidence shows that Mr. Lindsay purchased 909 head of cattle ranging in average weight from 446 pounds to 835 pounds. Mr. Lindsay, who has been in the cattle business for forty-two years, shipped these cattle to Producers Grain Corporation's feedlot in Hale County, Texas, in July and August of 1974 for the purpose of feeding and fattening the cattle for market. Mr. Lindsay stated that the 400 pound weights had "a little more age than what they actually weighed," but Producers Grain accepted the cattle for feeding and did not say anything about not being able to feed out the cattle.

Grover Phillips, manager of the Producers Grain feedlot in Hale County, Texas, testified that he made the arrangements with Mr. Lindsay for the cattle to be fed at the feedlot. As to his understanding of the transaction, Mr. Phillips' testimony was as follows:

Q. And what was the understanding as to how they would be fed?

A. They would be fed in the same manner as any other customer's cattle that was being fed there at that time.

Q. Was there anything concerning the feeding of the cattle that they'd be fed in the good and proper and customary manner of cattle feeding operations in feeding out cattle?

A. Yes, sir, they'd be fed in the manner that all feed yards feed cattle.

Mr. Phillips' testimony further shows that Producers Grain's staff nutritionists determined the type of rations to be fed to the cattle. Normally, cattle were fed a starter ration, a grower ration, an intermediate ration and a finisher ration. The principal component of these rations was milo grain. Approximately 95 percent of the grain fed in the cattle operation, came from Producers Grain Corporation's grain operation. In its cattle feeding...