Snyders Smart Shop, Inc. v. Santi, Inc., 1533
Citation | 590 S.W.2d 167 |
Decision Date | 18 October 1979 |
Docket Number | No. 1533,1533 |
Parties | SNYDERS SMART SHOP, INC., d/b/a Snyders-Chenards, Appellant, v. SANTI, INC., Appellee. |
Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
This is an appeal from an order overruling a plea of privilege filed by Snyders Smart Shop, Inc., d/b/a Snyders-Chenards, defendant in the trial court and appellant in this Court. Santi, Inc., a Texas corporation, plaintiff in the trial court and appellee here, is domiciled in Cameron County, Texas. Appellant is domiciled in Travis County, Texas. Appellee, in its controverting plea, alleged that venue was in Cameron County under the provisions of Tex.Rev.Civ.Stat.Ann art. 1995, §§ 5 1, 7 2 and 30 3 (1964 and Supp.1978), and Tex.Bus. & Comm.Code Ann. § 17.56 4 (Supp.1978).
It is undisputed that the parties entered into a written contract, dated October 31, 1977, whereby appellant agreed to sell to appellee, and the latter agreed to buy from the former, the business assets of a store, owned by appellant, and located in the City of Brownsville, Cameron County, Texas, including all inventory, furniture, fixtures and equipment in the store building, "all accounts receivable attributable to said store," and all layaway merchandise "presently held at said store."
In connection with the sale of the accounts receivable and layaway merchandise which were to be sold to appellee for the sum of $118,000.00, in cash, as adjusted on the date of closing, the contract expressly provided:
The "six-month" period relating to accounts receivable expired on April 30, 1978.
On March 2, 1978, appellee's attorney wrote appellant's attorney concerning accounts receivable in the total amount of $13,791.08, hereinafter referred to as the "Lozano accounts," which appellee claims "had previously been turned (by appellant) to Valley Credit Control for collection." In the letter, appellant was advised that appellee "never intended to purchase" the Lozano accounts.
On May 24, 1978, appellee's attorney wrote appellant's attorney and told him that the unpaid balance of the "Hartic accounts" (which were the subject of special treatment in the contract) was $17,592.42. The letter further stated:
"In behalf of Santi, Inc., we now tender all of these present accounts, plus all of the Lozano accounts, back to Snyders-Chenards and request immediate reimbursement."
Appellant did not comply with the demand made on it, and appellee filed suit to enforce its demand on October 27, 1978. Appellee, plaintiff in the trial court, alleged:
We first determine whether venue was proper in Cameron County pursuant to the provisions of Tex.Rev.Civ.Stat.Ann. art. 1995, § 5(a). This section has been construed to require that the written contract expressly state that the obligation is performable at a particular place. The place of performance cannot be implied; it must be expressed. Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610 (Tex.Sup.1948); Conner v. Prescon Corporation, 500 S.W.2d 713 (Tex.Civ.App. Corpus Christi 1973, no writ). Our review of the contract in this case reveals nothing pertaining to the place of performance, although Cameron County is mentioned several times as the location of the store. See Traweek v. Ake, 280 S.W.2d 297 (Tex.Civ.App. El Paso 1955, no writ). Hence, section 5(a) of article 1995 is inapplicable to the case at bar.
In order to maintain venue under the provisions of section 7 of art. 1995, not only must the cause of action be one sounding in tort and not one for breach of contract or to enforce the provisions of a contract, but the plaintiff must plead fraud and must also prove, prima facie, every constituent element of fraud. Safeway Stores, Inc. v. Amburn, 380 S.W.2d 727 (Tex.Civ.App. Fort Worth 1964, writ dism'd); Nelson International, Inc. v. Bolin, 567 S.W.2d 901 (Tex.Civ.App. San Antonio 1978, no writ); Banks v. Merritt, 537 S.W.2d 494 (Tex.Civ.App. Tyler 1976, no writ). For the elements of actionable fraud, see Oilwell Division, United States Steel Corporation v. Fryer, 493 S.W.2d 487 (Tex.Sup.1973).
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...are not goods); Portland Sav. & Loan Ass'n, 619 S.W.2d at 245 (securities are not goods); Snyders Smart Shop, Inc. v. Santi, Inc., 590 S.W.2d 167, 170 (Tex.Civ. App.—Corpus Christi 1974) (accounts receivable are not goods). Securities are intangibles and, therefore, not goods as that term i......
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...indicates an obvious legislative intent to exclude the purchase of intangibles from the scope of the DTPA. See Snyders Smart Shop v. Santi, Inc., 590 S.W.2d 167, 170 (Tex.Civ.App.--Corpus Christi 1979, no writ). Further, numerous courts have held that intangibles are not "goods" and thus, a......
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Table of Cases
...§6.06 Smith v. Levine , 911 S.W.2d 427 (Tex. App.—San Antonio 1995, writ denied), §6.01.2 Snyders Smart Shop, Inc. v. Santi, Inc. , 590 S.W.2d 167 (Tex. Civ. App.—Corpus Christi 1981, no writ), §1.02.5 Sorokolit v. Rhodes , 889 S.W.2d 239 (Tex. 1994), §2.02.1 TABLE OF CASES A-17 Southern Ca......