Seley v. Williams

• Decision Date: 09 February 1899
• Citation: 50 S.W. 399
• Parties: SELEY et al. v. WILLIAMS.
• Court: Texas Court of Appeals

50 S.W. 399

SELEY et al. v. WILLIAMS.

Court of Civil Appeals of Texas.

February 9, 1899.

Appeal from Colorado county court; J. J. Mansfield, Judge.

Action by H. S. Williams against W. W. Seley and another, co-partners as Seley &amp Early. There was a judgment for plaintiff, and defendants appeal. Affirmed.

John G. Winter, for appellants. W. L. Adkins, for appellee.

PLEASANTS, J.

Appellee was a resident of Colorado county, and appellants were residents of the county of McLennan; and this suit was instituted in the county court of Colorado county by appellee to recover of appellants damages for an alleged difference in the quality of five cars of corn sold and delivered by them, and that of the corn which, under the contract of sale, should have been delivered. The defendants (the appellants here) properly pleaded their privilege to be sued in the county of their domicile, and this plea was overruled by the trial court, and judgment rendered for the plaintiff; and from that judgment the defendants have appealed to this court, and submit but a single assignment of error, and that is that the court erred in not sustaining their plea to the jurisdiction of the court of their persons.

If the case is one falling within the fifth exception of article 1194 of the Revised Statutes of 1895, the judgment must be affirmed; otherwise, it must be reversed, and the cause dismissed. This exception to the provisions of said article is in these words: "Where a person has contracted in writing to perform an obligation in any particular county, suit may be brought in such county, or in the county where the defendant has his domicile." The cause was tried by the court without the intervention of a jury, and there is no statement of facts before us; but we have the trial court's conclusions of fact and of law, filed at the request of appellants, and among said conclusions of fact are these: The defendants, W. W. Seley and Eugene Early, composing the firm of Seley & Early, being both residents of the city of Waco, McLennan county, and doing business as said firm in said county, did on February 26, 1897, agree in writing with plaintiff, H. S. Williams, to deliver to him, at Columbus, Colorado county, Tex., where Williams resided and carried on a grain business, five cars of good, sound corn, for which Williams was to pay 34 cents per bushel; that the corn was shipped to the defendants, Seley & Early, at Columbus, Colorado county, and under their instructions was, upon the payment of the price thereof by Williams, delivered to him. These conclusions are based upon the following facts in evidence, and recited in appellant's bill of exceptions No. 1. First. The three following telegrams: No. 1: "2-20, 1897. To Seley & Early, Waco, Texas: Am in market for five cars corn. Quote me. H. S. Williams." No. 2: "2-20, 1897. To H. S. Williams, Columbus, Texas: Sacked mixed thirty-four; white, cent higher. Seley & Early." No. 3: "2-20, 1897. To Seley & Early, Waco, Texas: Ship five cars all new sks., part quick shipment. H. S. Williams." Second. Five drafts drawn by Seley & Early on appellee, the first being in these words: "Waco, Texas. 2-26, 1897. On arrival of car, pay to the order of Waco State Bank two hundred and four dollars, with exchange, value received, and charge to account of c-c 7128. Bill of lading attached. [Signed] Seley & Early. No. 7,278. To H. S. Williams, Columbus, Texas,"—which draft was indorsed: "Pay to the order of Simpson B'k, Columbus, Texas. Waco State Bank. Meredith A. Sullivan, Cashier. The Simpson Bank. Paid March 1st, 1897. Columbus, Texas." The bill of lading attached to this draft was issued by the Missouri, Kansas & Texas Railway...