Southwestern Peanut Growers Ass'n v. Kendrick, 2480.

• Decision Date: 03 November 1944
• Docket Number: No. 2480.,2480.
• Citation: 183 S.W.2d 1019
• Parties: SOUTHWESTERN PEANUT GROWERS ASS'N, Inc., v. KENDRICK.
• Court: Texas Court of Appeals

Page 1019

183 S.W.2d 1019

SOUTHWESTERN PEANUT GROWERS ASS'N, Inc., v. KENDRICK.

No. 2480.

Court of Civil Appeals of Texas. Eastland.

November 3, 1944.

Rehearing Denied December 8, 1944.

Appeal from Jones County Court; Gilbert Smith, Judge.

Action by S. L. Kendrick against Southwestern Peanut Growers Association, Inc., for commissions and wages. The court overruled defendant's plea of privilege, and it appeals.

Reversed, with directions.

Turner & Seaberry, of Eastland, for appellant.

Smith & Smith, of Anson, for appellee.

FUNDERBURK, Justice.

S. L. Kendrick, a resident of Jones County, brought this suit, in said county, against Southwestern Peanut Growers Association, a corporation with principal office at Gorman in Eastland County, to recover $419.82 claimed to be due by defendant to plaintiff as a "balance of commission fee and wages for the plaintiff's services for defendant." The defendant having filed a plea of privilege, the plaintiff answered with a controverting plea seeking to sustain venue in Jones County under exception 5 to the general rule governing the venue of actions, as provided in Vernon's Ann.Civ.St. art. 1995.

Upon hearing the Court overruled the plea of privilege, and defendant has appealed.

Appellant predicates its appeal upon a single point as follows: "Appellee having failed to prove that the written contract provided for payment to him of the sums claimed, in Jones County, the Court erred in overruling and not sustaining the plea of privilege." The point as thus stated is followed by a more formal legal proposition, as follows: "Under Exception 5 to the general rule of venue, it is immaterial that some obligations imposed by a written contract are required to be performed by one, or the other, party in a particular county; the material and controlling fact being that the particular obligation sought to be enforced by the suit is required by the contract to be performed in a particular county, expressly named." This is the proposition declared by this Court, upon authority of the many cases therein cited, in McKinney v. Moon, Tex.Civ.App., 173 S.W.2d 217. Other cases additional to those cited in McKinney v. Moon, supra, and supporting some or all the elements of said proposition may be listed as follows: Gottlieb v. Dismukes, Tex.Civ.App., 230 S.W. 792; Strawn Merchandise Co. v. Texas Grain & Hay Co., Tex.Civ.App., 230 S.W. 1094; La Salle County Water Improvement District No. 1 v. Arlitt, Tex. Civ.App., 297 S.W. 344; Southern Pine Lumber Co. v. King, Tex.Civ.App., 130 S.W.2d 942; Radio Equipment Co. v. Anderson Music Co., Tex.Civ.App., 44 S.W.2d 761; Cox v. Bunn, Tex.Civ.App., 160 S.W.2d 101.

The obligation of defendant, sought to be enforced by this suit, is to pay for certain services of plaintiff, which services, according to the contract, were to be performed by plaintiff at an expressly named place (Anson) in Jones County. In accordance with the above proposition, it is immaterial that plaintiff's obligations were to be performed in Jones County. The contract, while expressing the obligation of defendant to make payment for the services, neither expressly nor impliedly obligates defendant to make such payment in Jones County, or in any other particular place. It makes no provision as to the place of such payment.

The question to be decided is not affected by the amendment, in 1935, of said exception 5. Formerly that exception was as follows: "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." In 1935 it was amended to read as follows: "If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile." (The changes made by the amendment are shown by the italics.) The manifest purpose of the changes was not to enlarge the operation of exception 5, but rather to restrict it. Before the amendment, it was well recognized that if the provisions of a written contract necessarily implied that an obligation, which it imposed upon a party, should be performed in a particular county, the other party could sue to enforce such obligation in that county. Farmers' Seed & Gin Co., Inc. v. Brooks, 125 Tex. 234, 81 S.W.2d 675; Seley v....