Savage v. H. C. Burks & Co.

• Decision Date: 28 February 1925
• Docket Number: (No. 9342.)
• Citation: 270 S.W. 244
• Parties: SAVAGE v. H. C. BURKS & CO.
• Court: Texas Court of Appeals

270 S.W. 244

SAVAGE v. H. C. BURKS & CO.

(No. 9342.)

Court of Civil Appeals of Texas. Dallas.

February 28, 1925.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by H. P. Savage against H. C. Burks & Co. From an order transferring the cause from Dallas county to Brown county, plaintiff appeals. Reversed and rendered.

Otis Bowyer, Jr., of Dallas, for appellant.

E. W. Crane, of Houston, for appellee.

JONES, C. J.

This is an appeal from the action of the court below in sustaining appellee's plea of privilege and ordering this cause transferred to Brown county. To this plea of privilege appellant filed a controverting affidavit, the material part of which is to the effect that appellee is a private corporation with its office and place of business in Brownwood, Brown county, Tex., and that a part of the cause of action on which appellant brought suit arose in Dallas county, and that, under section 24 of article 1830, Revised Statutes, appellant had the right to maintain the suit in Dallas county. The issue thus made was tried by the court, with the result that the plea of privilege was sustained and the transfer of the cause ordered.

The material facts are as follows: Appellant resided in the city of Dallas, and, on August 22, 1923, entered into a verbal contract of employment with appellee, under the terms of which appellant was to receive a salary of $200 per month for the year beginning on said date, and, in addition, was to receive a commission of 15 cents per bale on each bale of cotton sold by him for appellee to any cotton dealer in the city of New Orleans, and was further to receive one-half of the net profits, if any, realized from the resale by appellee of any cotton purchased by appellant for appellee from firms or brokers located in the city of Dallas and in the city of Brownwood. It was the duty of appellant, under this contract, to perform services for appellee wherever appellee might send him. In pursuance of this contract appellant purchased cotton from brokers and dealers in the city of Dallas to the number of 833 bales, this purchase being made from samples of cotton in Dallas, and the contract of purchase was entered into in said city, though none of the cotton was located in Dallas county. This cotton was resold by appellee at a profit of $5,200. The resale was not made in Dallas county. On December 5, 1923, appellee filed in the district court of Dallas county this suit, seeking to recover an indebtedness growing out of his employment under said contract, alleging an indebtedness due on commissions for the purchase of cotton in New Orleans, alleging a balance due on his monthly salary, and also alleging the amount due on 50 per cent. of the profits realized from the sale of the 833 bales of cotton purchased in Dallas county. The allegations of this last item of indebtedness furnished the basis for the contention made in the controverting affidavit that a part of the cause of action against appellant arose in Dallas county.

The trial court filed findings of fact and conclusions of law, in which, in addition to the facts above found by this court, it was found that appellant was a private corporation with its principal office and place of business in Brown county, Tex., and that it did not have an agency or representative located in Dallas county, Tex. From these findings of fact the court concluded that no part of appellant's cause of action arose in Dallas county, and entered judgment transferring the case to Brown county, the domicile of appellee.

Error is duly assigned on the entry of this judgment on the ground that, under the findings of fact made by the...