Rorschach v. Pitts

• Decision Date: 09 April 1952
• Docket Number: Nos. A-3440,A-3441,s. A-3440
• Citation: 151 Tex. 215,248 S.W.2d 120
• Parties: RORSCHACH v. PITTS, Chief Justice, et al.
• Court: Texas Supreme Court

Page 120

248 S.W.2d 120

151 Tex. 215

RORSCHACH v. PITTS, Chief Justice, et al.

Nos. A-3440, A-3441.

Supreme Court of Texas.

April 9, 1952.

Rehearing Denied May 7, 1952.

Fischer, Wood & Burney, Corpus Christi, for relator.

Underwood, Wilson, Sutton, Heare & Boyce and C. A. Stein, all of Amarillo, for respondents.

GARWOOD, Justice.

These two companion proceedings of original mandamus to require certification of law questions by the Amarillo Court of Civil Appeals arise from the holdings of that court and the district court in corresponding suits in Hutchinson County, maintaining venue in the latter as against the plea of the relator-defendant, Rorschach, to be sued in Bexar County, where he resides. See Rorschach v. Polo Oil Co., Tex.Civ.App., 245 S.W.2d 1019. Both suits were for money damages due primarily to failure of the relator-defendant to take and pay for casinghead gas as required of him by written contract of purchase and sale with the respective respondent-plaintiffs. Both involve substantially the same facts, including the same form of contract, and in this court, the same issues of (a) whether the decision of the Court of Civil Appeals that the obligations in suit were performable in Hutchinson County under subsection 5 of Art. 1995, Vernon's Tex.Civ.Stats.Ann., conflicts with decisions of other Courts of Civil Appeals, and (b) assuming conflict, what are the 'merits' of the questions sought to be certified, that is, were the decisions below correct or erroneous. Rule 475, Texas Rules of Civil Procedure. These issues are reflected in the two questions sought to be certified, which are copied in the footnote. ¹

The contracts (which are merely described in the record but without controversy) may be sufficiently summarized for our purposes as follows: They recited the wells in question to lie in Hutchinson County, and admittedly the express language obligated the relator-defendant, who operated a gas processing plant, to take delivery of the gas in that county. However, while the matter of payment by the relator-defendant was otherwise fully provided for, no place of payment was stated unless by implication from the other provisions abovementioned. It was also agreed that the dry gas remaining in the hands of relator-defendant after the processing, or a certain portion thereof, would be returned by him to the respective leases of the respondent-plaintiffs in the county or accounted and paid for. The basic allegations of the suits (which we also must take from uncontroverted descriptions in the record) were that the relator-defendant had failed to receive, and accordingly failed also to pay for, the full amount of gas he was bound to accept and pay for under the contract and had also failed to account for certain of the residue gas which he was obligated to return or pay for. As stated, the relief sought was money damages.

Evidently the only decision seriously urged as establishing a conflict is Taylor v. Burleson, Tex.Civ.App., 30 S.W.2d 351, from the Galveston Court. Moreover, from the oral argument, the respondent-plaintiffs appear to rest their entire case upon absence of conflict and to base the latter point in turn exclusively upon the fact that Taylor v. Burleson was decided before the 1935 amendment to subsection or exception 5 of Art. 1995.

We have concluded that a conflict exists notwithstanding the amendment. The respective texts before and after the amendment are as follows:

'5. Contract in writing.-If a person has contracted in writing to perform an obligation in a particular county, suit may be brought either in such county or where the defendant has his domicile.'

'5. Contract in writing.-If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.' (We indicate by the italics the changes or insertions of additional language made by the amendment.)

The new phrase 'upon or by reason of such obligation' is what the respondent-plaintiffs say made the decisions in the instant case a ruling different from that of Taylor v. Burleson. We think the respondent-plaintiffs are correct in restricting their contention to this narrow point because, with all deference to the view taken below, a careful examination of the opinion in Taylor v. Burleson convinces us that the facts and character of that suit were essentially the same as those of the instant suits. Taylor v. Burleson did, indeed, contain a count for the price of timber taken and not paid for, but the greater part of the damages claimed was, as in the instant cases, for failure of the defendants to take any pay for what they were obligated to take under the contract. The essence of the argument of no conflict is that, considering the phrase 'upon or by reason of' in the amendment, the instant suits must be considered, not as claims 'upon' a general obligation to pay (as in Taylor v. Burleson), but as claims 'by reason of' an obligation to take delivery expressly in Hutchinson County. In dealing with this question we should consider not merely the results of the decisions involved but also the route by which these results...