A & S Steel Buildings, Inc. v. Burk, 7454
| Decision Date | 22 March 1965 |
| Docket Number | No. 7454,7454 |
| Citation | 390 S.W.2d 401 |
| Parties | A & S STEEL BUILDINGS, INC., Appellant, v. Leon BURK, Individually and d/b/a Leon Burk Construction Company, Appellee. |
| Court | Texas Court of Appeals |
Clayton, Kolander, Moser & Templeton, Amarillo, for appellant.
Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellee.
This is an appeal from an order of the trial court sustaining the plea of privilege filed by appellee and transferring the case to the District Court of Tom Green County, Texas. Appellant filed suit against appellee for $1,439.32 and attorney's fees for certain building materials furnished under an alleged written contract between the parties. Appellee's plea of privilege was duly controverted by appellant in which they rely on Subdivision 5 of Article 1995, Vernon's Ann.Civ.St. The trial court, without a jury, sustained the plea of privilege and ordered the case transferred to Tom Green County, the legal residence of appellee.
On April 4, 1963, the parties entered into a written contract whereby appellant sold material for a rigid frame steel building to appellee for the sum of $8,577.00. The material was delivered to appellee at Big Springs, Texas, in accordance with the terms of the contract, and it is undisputed this amount has been paid by appellee. Subsequent to the execution of the contract and prior to the delivery of the material, appellee orally ordered some extra material valued at $144.68. Still later appellee informed appellant the roofing sheets were damaged in shipment and requested replacements. Additional roofing sheets valued at $1,294.64 were then shipped to appellee. The alleged value of these two shipments is the subject matter of this suit.
A provision of the April 4 contract, which was placed in evidence without objection, reads:
Unquestionably the contract is performable in Potter County, Texas. In order for a case to come within Subdivision 5 of the venue statute the suit must be to enforce a particular obligation which the contract requires to be performed in the particular county expressly named. Slagle v. Clark, (Tex.Civ.App.), 237 S.W.2d 430; Cunningham v. Allison, (Tex.Civ.App.), 202 S.W.2d 297. It is immaterial that some obligations imposed...
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