La Salle County Water Improvement Dist. No. 1 v. Arlitt

• Decision Date: 15 June 1927
• Docket Number: (No. 7136.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 297 S.W. 344
• Parties: LA SALLE COUNTY WATER IMPROVEMENT DIST. NO. 1 v. ARLITT.
• Court: Texas Court of Appeals

297 S.W. 344

LA SALLE COUNTY WATER IMPROVEMENT DIST. NO. 1 v. ARLITT.

(No. 7136.)^*

Court of Civil Appeals of Texas. Austin.

June 15, 1927.

Rehearing Denied July 20, 1927.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by J. L. Arlitt against La Salle County Water Improvement District No. 1. From an interlocutory order overruling a plea of privilege seeking to change venue to domicile of defendant, defendant appeals. Order set aside, and cause remanded, with instructions.

Templeton, Brooks, Napier & Brown and Gaines, Quin, Harley & Gaines, all of San Antonio, for appellant.

Hart, Patterson & Hart, of Austin, for appellee.

McCLENDON, C. J.

Appeal from an interlocutory order overruling a plea of privilege seeking to change the venue and transfer the cause to the district court of La Salle county, the domicile of defendant.

Appellee's claim of right to sue in Travis county is rested alone upon subdivision 5 of article 1995, Revised Statutes, reading:

"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."

The cause of action in suit was based upon a written contract executed by appellant and appellee, whereby the latter was to act as the advisor and financial agent of the former in all matters pertaining to the issue and sale of its bonds, for which services appellee was to receive 3 per cent. of the sales price of all bonds sold. The record shows that prior to the sale or offer for sale of any bonds appellant repudiated the contract and declined to be further bound thereby. The provisions of the contract upon which appellee relied to fix the venue in Travis county follow:

"All bonds are to be shipped through such bank or banks as we (appellee) may specify."

And:

"Our (appellee's) compensation of 3 per cent. of the actual sale price received for the bonds handled under this proposal shall be deducted by us on each and every installment of bonds as delivered to the purchaser through us."

Immediately after this repudiation, appellee addressed a letter to appellant, designating the Citizens' State Bank of Austin, Tex., as the bank to which bonds should be shipped under the above stipulation. Appellant's repudiation was dated August 26, 1926; appellee's designation of the Austin bank was dated August 28, 1926, and the suit was filed September 4, 1926.

It is the contention of appellee that the necessary legal effect of these stipulations and designation was to obligate appellant to ship the bonds to appellee at Austin, Tex., where he was authorized under the terms of the contract to deduct his commission, and that therefore there was a written obligation, binding upon appellant, to perform its part of the contract, that is, to pay the commissions, in Travis county. If this contention is not correct, then it is conceded that the venue was not properly laid in Travis county, and the plea of privilege should be sustained. Since we have reached the conclusion that this is not a proper interpretation of the contract, other questions raised by appellant become immaterial, and discussion of them will be pretermitted.

The decisions of this state uniformly hold that the fact that the written contract in suit imposes upon the plaintiff obligations to be performed in the county where suit is brought does not give jurisdiction in such county under subdivision 5 above quoted, but that the obligation to be performed in such county must rest upon the defendant, and must form the basis, or one of the bases, of the suit. Ogburn v. Taylor, 59 Tex. Civ. App. 442, 126 S. W. 48; Bomar v. Schubert (Tex. Civ. App.) 145 S. W. 1193; Birge v. Lovelady (Tex. Civ. App.) 145 S. W. 1194; McCammant v. Webb (Tex. Civ. App.) 147 S. W. 693; Casey v. Carr (Tex. Civ. App.) 148 S. W. 601; Russell v. Green (Tex. Civ. App.) 214 S. W. 448; Gottlieb v. Dismukes (Tex. Civ. App.) 230 S. W. 792; Davis v. Gouldy (Tex. Civ. App.) 243 S. W. 715; Heid Bros. v. Reisto (Tex. Civ. App.) 247 S. W. 349 (writ of error refused); Wrenn v. Brooks (Tex. Civ. App.) 257 S. W. 299.

It is also held that venue is not a subject of contract but that:

"The rules to determine in what courts and counties actions may be brought are fixed, upon considerations of general convenience and expediency, by general law; to allow them to be changed by the agreement of parties would disturb the symmetry of the law, and interfere with such convenience." International Travelers' Ass'n v. Branum, 109 Tex. 543, 212 S. W. 630.

Venue in Travis county must rest, therefore, not upon any agreement of the parties providing for such venue, but upon the statute fixing the venue there by virtue of a written contract obligating performance by appellant in that county.

If we concede for the purpose of this case the correctness of appellee's construction of the contract to the effect that the provision with reference to shipment of bonds meant a shipment to appellee or his order and consequent delivery by appellant to appellee at the point to which, or, as the contract states, "bank through which," the bonds were to be shipped, and that the stipulation with reference to deduction of commissions in connection with the shipping stipulation amounted to an obligation on appellant's part to pay the designated commission at the designated bank, still we do not think the case as presented falls within section 5 of article 1995, for the following reasons:

The contract provided that appellee was to act both as financial agent and advisor of the district in reference to its bonded indebtedness, and was required to do a great many things prior to the offer of any bonds for sale. The experience of appellee in handling large bond issues and the extent of his organization and business connection, as well as his reputation and standing in the financial world as a bond salesman, constituted a material consideration for the contract. Appellee expressly assumed responsibility for the sale of all the bonds issued or to be issued at any time by the district, and all expenses in connection therewith. The provision above quoted with reference to deducting appellee's commissions provided for such deduction "on each and every installment of bonds as delivered to the purchaser through us." And the provision for...