Sanders v. George M. Hester Cotton Co.

• Decision Date: 27 April 1917
• Docket Number: (No. 7405.)
• Citation: 195 S.W. 269
• Parties: SANDERS v. GEORGE M. HESTER COTTON CO.
• Court: Texas Court of Appeals

195 S.W. 269

SANDERS v. GEORGE M. HESTER COTTON CO.

(No. 7405.)

Court of Civil Appeals of Texas. Galveston.

April 27, 1917.

Rehearing Denied May 17, 1917.

Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.

Action by J. W. Sanders against the George M. Hester Cotton Company. From a judgment sustaining defendant's plea of privilege transferring a case, plaintiff appeals. Affirmed.

R. W. Franklin, of Houston, for appellant. A. B. Wilson, Robt. L. Cole, and Jno. F. Cole, all of Houston, for appellee.

GRAVES, J.

This appeal is from a judgment sustaining appellees' plea of privilege, and transferring the case to the district court of Victoria county. No statement of facts has been filed in this court, but the facts relied upon to sustain the venue in Harris county, where the suit was filed, may be thus summarized from the conclusions of fact filed by the court, and the bills of exception, which may be looked to for that purpose. Reed v. Robertson, 106 Tex. 56, 156 S. W. 196; Drummond v. Bank, 152 S. W. 740; Garrison v. Richards, 107 S. W. 861.

Appellant, who resided in Harris county, filed the suit in the district court of that county against appellees, who had never resided there, but at all material times had been and were residents of Victoria county; no one of appellees had ever signed any document or paper which provided specifically that the indebtedness sued on should be paid in Harris county, Tex., but that they had drawn the two drafts hereinafter set forth and attached thereto the bills of lading hereinafter described, and deposited them for collection with the Victoria National Bank.

Plaintiff introduced in evidence St. Louis, Brownsville & Mexico Railway Company bill of lading No. D-57, dated November 3, 1913, Bloomington, Tex., consigned to the order of G. M. Hester Cotton Company at Houston, Tex., "notify Sanders & Company, Houston, Texas," covering 122 bales of cotton marked "OXP," which bill of lading was indorsed, "G. M. Hester Cotton Company, by G. M. Hester." Also bill of lading for 33 bales of cotton, St. Louis, Brownsville & Mexico Railway Company No. D-45, dated Victoria, Tex., November 12, 1913, consigned to the Victoria National Bank at Houston, Tex., "notify Sanders & Company, Houston, Texas," said cotton marked "LXT," and said bill of lading indorsed, "Victoria National Bank."

Plaintiff also introduced in evidence two drafts as follows:

"Customer's Draft. Bloomington, Texas, November 3, 1913. B/L No. D-57. B/L for 122 bales attached, marked `OXP.' First State Bank of Bloomington: Pay to the order of First State Bank of Bloomington, Texas, $6,408.08 sixty-four hundred eight and 8/100 dollars, value received, and charge same to account of Sanders & Company, Houston, Texas.

"[Signed] G. M. Hester Cotton Co., P. G."

"Customer's Draft. Bloomington, Texas, November 10, 1913. B/L No. ____ for 33 bales At'd. First State Bank of Bloomington: Pay to the order of First State Bank of Bloomington, Texas, $1,948.32 nineteen hundred and forty-eight and 32/100 dollars, value received, and charge same to account of Sanders & Company.

"[Signed] G. M. Hester Cotton Co., G."

Plaintiff also introduced in evidence the following letter:

                                           "July 22, 1913
                

"G. M. Hester, Bloomington, Texas—Dear Sirs: We are in receipt of your favor of the 21st, and in reply beg to hand you herewith our private code together with difference sheet, and in telegraphing you, you will understand our price to be basis middling, landed Houston, weight and grade guaranteed by you. In sending our limits we will only telegraph you one word, for instance if we send the word `Threatening' you will understand our offer to be 12¢ basis middling, landed Houston, or if we send `Throttle' you will understand same to be 12½ basis middling, landed Houston. Any cotton you buy to be reported to us by telegraph and you will ship cotton to us at Houston, inserting in the B/L `Through Flat' and draw on us with B/L attached for approximate value of the cotton, and when same arrives in Houston we will have it classed and weighed and send you account sales, together with our check for any balance due you, or if the shipment shows a loss we will expect your check by return mail. Please let us know when you expect the crop to begin to move, and when you desire us to send you limits.

                    "Yours truly,     Sanders & Company."
                

In November, 1913, the defendant, Hester, called the plaintiff by phone, and stated that the company had two lots of cotton which it desired to sell Sanders & Co., but not at the price named by their limits of that date. That he agreed that the said Hester Cotton Company should ship said cotton to him, and should draw on plaintiff as an advancement on the basis of 10 cents per pound, basis middling, landed Houston, and that Sanders & Co. should use the cotton, but that the price of the same should not be fixed until the defendant company decided to sell it, either on plaintiff's limits or the market price at Houston, but that the shipment, except for the fixing of the price, should be handled in the same manner as ordinary sales provided for in said letter, but that in the event said cotton went down, the defendants were to margin the same, so as to keep the value of said cotton, together with the margin put up greater than the sum of money drawn for, and the freight; otherwise the plaintiff should sell it. The defendants did ship their cotton to plaintiff, and drew the above drafts and attached thereto bills of lading covering the same, which drafts and bills of lading were paid in Houston, Harris county, Tex., by the plaintiff. Said cotton was classed and weighed in Houston, and the freight thereon was paid in Houston.

The market value of the above-described cotton declined, and the defendants failed to keep up the margins on the same, and after repeated demands for them to do so, the said cotton was sold by the plaintiff for 12½ cents per pound, basis middling, landed Houston, and the price received therefor was $2,370.27 less than the amount for which the defendants had...