Wood Motor Co. v. Hawkins
| Decision Date | 13 October 1949 |
| Docket Number | No. 6454,6454 |
| Citation | 226 S.W.2d 487 |
| Parties | WOOD MOTOR CO., Inc. v. HAWKINS. |
| Court | Texas Court of Appeals |
Prendergast & Prendergast, Marshall, Robert F. Salmon, Linden, for appellant.
Carney, Carney & Mays, Atlanta, for appellee.
This is an appeal from an order of the District Court of Cass County overruling appellant's plea of privilege to be sued in Harrison County. The appellant is a corporation having its domicile in Harrison County, and the appellee resides in Atlanta, Cass County.
The suit is for damages which appellee claims against appellant for the failure of appellant to deliver to appellee six automobiles which appellant allegedly was obligated to deliver under a contract then existing between them. The appellant was a 'Direct Dealer,' commonly known as a district dealer, of De Soto and Plymouth automobiles under arrangements between it and the Chrysler Corporation. On August 17, 1945, litigants entered into a written contract whereby the appellee became Associate Dealer under appellant in a sales area defined as Atlanta, Cass County, Texas. Under such contract appellant was to represent De Soto and Plymouth motor products in such sales area and agreed 'to sell energetically the vehicles, parts and accessories he buys from Direct Dealer and to provide and maintain facilities for selling and servicing them * * * in the foregoing sales area.'
The contract was executed in the City of Atlanta. It is quite lengthy and general in its terms. It goes into great detail to set forth matters to the mutual interest of the parties. The number of automobiles to be sold and delivered by Direct Dealer to Associate Dealer is not stated in the contract nor are the prices of automobiles or other motor vehicles, parts and products set forth. On the matter of prices and discounts the contract carried this stipulation: 'Direct Dealer will from time to time advise Associate Dealer of the prices of the vehicles and parts and accessories he buys from Direct Dealer, and will furnish Schedules of Discounts and Terms of purchase to Associate Dealer.'
With reference to the procurement of motor vehicles we find the following provisions:
'In any case where Associate Dealer orders a sufficient quantity of motor vehicles to make a freight carload lot, Direct Dealer agrees, upon request of Associate Dealer, to notify the factory to make shipment of such orders directly to Associate Dealer.'
A separate instrument of writing signed by appellant, and accepted by appellee called 'Terms of Purchase' was furnished to appellee as provided for above. It bears the same date as the contract. Since the 'Terms of Purchase' was executed by the parties simultaneously with the original contract and was in contemplation under the terms of the contract it was a part of the whole agreement between the parties. The 'Terms of Purchase' carried the following pertinent provisions:
'For the information and guidance of Associate Dealer, Direct Dealer sets forth below the terms relating to the purchase by Associate Dealer from Direct Dealer of De Soto and Plymouth motor vehicles and motor vehicle parts and accessories.
'Direct Dealer solicits orders from Associate Dealer subject to the following provisions which shall be deemed to have been incorporated in and made a part of each order received by Direct Dealer from Associate Dealer unless Direct Dealer is notified to the contrary by such Associate Dealer at the time of placing such orders.'
(Here follow provisions not necessary to copy).
'Direct Dealer shall have the right to accept, in whole or in part, any or all orders received, and shall not be liable for any loss or damage resulting from its failure to ship or deliver goods ordered.'
Appellee seeks to maintain venue of the suit in Cass county under Subd. 5 of Article 1995, R.S. of Texas, as amended in 1935, Vernon's Ann.Civ.St. art. 1995, subd. 5, reading as follows (the amending words being in italics): 'Contract in Writing.-If a person has contracted in writing to perform an obligation in a particular...
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