Western Wool Commission Co. v. Hart

• Decision Date: 21 June 1892
• Citation: 20 S.W. 131
• Parties: WESTERN WOOL COMMISSION CO. v. HART.
• Court: Texas Supreme Court

20 S.W. 131

WESTERN WOOL COMMISSION CO. v. HART.

Supreme Court of Texas.

June 21, 1892.

Commissioners' decision. Section A. Appeal from district court, Howard county; WILLIAM KENNEDY, Judge.

Action by Edward Hart against the Western Wool Commission Company for a breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed.

Ball & Burney, for appellant. S. H. Cowan, for appellee.

HOBBY, P. J.

Appellee, Edward Hart, brought this suit to recover of the Western Wool Commission Company, a foreign corporation, doing business in Texas, and as a wool commission merchant in St. Louis, Mo., the sum of $1,700 as damages for the breach of a contract made between the appellant, acting through its agent, A. M. Robinson, and appellee, whereby appellant was to sell appellee's wool (20,000 pounds) at St. Louis, Mo., on commission. Appellee alleges that appellant agreed to grade the wool and sell it on its grade, for the best market price in St. Louis, which is averred to have been 25 cents per pound at the time of sale, and to remit the proceeds to Bressie Bros. & Denmark, for appellee; that appellant agreed to advance appellee 18 cents per pound thereon; that appellee, relying upon said agreement, shipped the wool from Big Springs, Howard county, Tex., to appellant, at St. Louis, Mo., which, on its arrival in St. Louis, appellant immediately sold for 16½ cents per pound, without ever grading the same as agreed; that, had appellant graded said wool, and sold it on its grade in accordance with said agreement, it would have brought 25 cents per pound, — that is, $1,700 more than it did bring. Appellant (defendant below) excepted to the petition on the ground that it did not show that "the cause of action accrued in Howard county," but did show that it accrued, if at all, in St. Louis, Mo. Appellant denied, under oath, having any agency or representative in Howard county, but alleged that it had an agent and representative in McLennan county, and denied that the cause of action, or any part thereof, ever accrued in Howard county. The foregoing was also embodied in a plea to the jurisdiction involving the question of fact. The defendant filed also an answer specially pleading that it had sold the wool for its full market price, and accounted for the same to appellee. The cause was tried by a jury, and a verdict was returned finding against defendant's plea to the jurisdiction and in favor of the plaintiff for $982.75 damages. Judgment was rendered thereon, and the defendant has appealed.

The first assignment is as follows: "The court erred in overruling the demurrer interposed and submitted by the defendant to the sufficiency of plaintiff's petition in so far as it sought to lay the venue of this suit in Howard county, Texas, and to give jurisdiction to said district court of Howard county in personam over the defendant as against its plea of privilege on the ground and allegation and theory that the cause of action, or a part thereof, `accrued' in Howard county, Texas; said demurrer being as follows: `That, in so far as plaintiff, by his petition, seeks to give jurisdiction of this cause over defendant to the district court of Howard county, Texas, upon the allegation and theory that the cause of action, or a part thereof, "accrued" in Howard county, the same is insufficient, for the reason that said petition shows on its face that the cause of action in toto "accrued," if at all, in St. Louis, Missouri.'"

The act of March 20, 1848, "organizing justices' courts, and defining their powers and jurisdiction," (Pasch. Dig. p. 285,) provided that no person shall be sued before any justice of the peace, except in the precinct of his residence, or in the precinct where the cause of action accrued, if in the same county, (Pasch. Dig. art. 1188.) No corresponding provision is made in the "Act to regulate proceedings in the district court," of 1846, (Pasch. Dig. p. 346, art. 1423.) In 1874 an act was passed to "fix the venue in certain cases," which provided substantially that public or private corporations, created by the laws of this or any other state, may be sued in any court in this state, having jurisdiction of the subject-matter, in any county "where the cause of action, or a part thereof, accrued." Gen. Laws 1874, p. 31. Subdivision 21, art. 1198, of the Revised Statutes, adopted in 1879, provided that suits against a private corporation, etc., might be commenced in any county in which the cause of action, or a part thereof, arose, etc. Such is the law as it now stands. The jurisdiction in this case rests upon the fact whether "the cause of action, or a part thereof, arose" in Howard county, Tex. The cause of action is that in which the plaintiff's remedy has its origin, — the fact or facts giving him the right to bring the suit. In cases like the present — a suit for damages growing out of the alleged breach of a contract — the cause of action must be predicated on some right existing in the plaintiff, and some duty resting on the defendant towards the plaintiff by reason of that right, which duty the defendant has failed to perform, or has negligently performed. The facts showing the defendant's failure to perform this duty constitute what we term the breach of the contract, and are no more a part of the cause of action than those facts which entitle the plaintiff to its performance. In other words, those facts which show the plaintiff's primary right in the matter are as much a part of the cause of action, and are as necessary as a foundation for the suit, as are those facts showing a violation or invasion of his right, ordinarily termed a breach of the contract or covenant by the defendant. Every cause of action, it is said by Mr. Pomeroy, consists, when subjected to analysis, of two separate and distinct elements, — the primary right and duty of the parties respectively, and the wrongful act or omission violating it. Our statute (section 21, art. 1198) seems to recognize the fact that the cause of action consists of two distinct elements, as it provides that the jurisdiction of the court shall attach where "a part thereof arose." The proof certainly shows that the transactions between appellant's agent and appellee in Howard county, with reference to the shipment of the wool to appellant at St. Louis, formed a part of the cause of action, (without these facts, which the proof disclosed, plaintiff showed no right of recovery;) and it is difficult to...