Early-Foster Co. v. A. P. Moore's Sons, Inc. ( 1921 )

The appellee relies upon section 24 of article 1830, R.S., to sustain the right to bring the suit in Smith county, claiming that the contract in suit was finally made in Smith county by acceptance of its terms at Tyler by appellee. The section authorizes suits to be brought against private corporations, as is appellant, "in any county in which the cause of action, or a part thereof, arose." The term "cause of action" used in this section, as construed, consists of the contract and its breach, and the right and the injury thereto. Ry. Co. v. Hill, 63 Tex. 381, 51 Am.Rep. 642; Western Wool Commission Co. v. Hill (Sup.) 20 S.W. 131; Cuero Cotton Oil Mfg. Co. v. Feeders Supply Co., 203 S.W. 80; Dallas Waste Mills v. Early-Foster Co., 218 S.W. 515. Under these authorities the requirement of the section that "part" of the cause of action must have arisen in the county where the suit is brought is satisfied upon proof that the contract was made in that county.

And a contract is made, under well-established rules of law, at the place where the acceptance of an offer is given. I Elliott on Contracts, § 62; cases cited supra.

The instant contract made over the telephone was an agreement which originated in the form of offer on one side and acceptance on the other, The final contract was a purchase by appellant and a sale by appellee of 500 bags of sugar f. o. b. car Chicago at 24 1/2; cents per pound, the sugar to be loaded in a car ready for shipment the day next following the day of the contract.

In construing the evidence it is to be borne in mind the rules of law are that the contract is complete only when both parties have agreed to one and the same set of propositions, and this is accomplished when one of the parties submits a proposition to which the other accedes, provided such acceptance neither takes from nor adds to the offer, but accepts it in every respect just as it stands. The acceptance, though, must be an unconditional acceptance of the offer. The rejection of an offer terminates it. It appears from the evidence that the president of appellant company placed himself in connection by means of the telephone system with the manager of appellee company, thereby inviting communication relative to his business. The appellant wanted to buy from appellee "a couple of cars of 500-bag rolling sugar." By "rolling sugar" was meant a car loaded with that amount of sugar ready for immediate transportation and resale. Thus prompt performance was intended. The manager of appellee informed appellant that "the only thing we had for immediate shipment was a 360-bag car, which, according to information, was being loaded in Sugarland that day, and I could sell him that car of sugar, but could not do so until I took the matter up with them (Sugarland)." The appellant, though, "explained that he wanted 500-bag cars." And to this the manager of appellee replied "that it was barely possible that I could get the Sugarland people to load a 500-bag car of sugar immediately, provided they could get an empty car, but I did not know what to do until I took the matter up with them." "Then," the witness says, "the question arose about price," and "he [appellant's president] asked me what would we take for a car." To this inquiry appellee's manager replied that he would take "25 cents f. o. b. Chicago," appellant having previously stated that the shipment was to be "f. o. b. Chicago." Appellant answered "that was too high, that he could not make any money at that price." Obviously it was the intention of appellant to reject the price given by appellee upon the clear ground that it did not give appellant a fair margin of profit in a resale. But the further fact, as testified to by the witness, manifests the intention on the part of appellant to not retire from an agreement as to price, and to fix a price that both parties might agree upon. Appellant then proposed to pay appellee, as the witness said "24 1/2 cents f. o. b. Chicago." This last price, coming from appellant, was clearly intended to be in place of the original price of 25 cents fixed by appellee, and is at least a counter proposal. This counter proposal, in order to constitute an agreement, must be accepted by appellee, and until accepted by appellee the minds of the parties would not meet in mutual agreement of the price payable. And to this proposal to pay "24 1/2 cents f. o. b. Chicago" the appellee inquired if "that would be net cash." Then, as indicating the intention of the parties to create legal relations, it appears that the appellee, with the view to "understand his proposition thoroughly," restated to appellant, "Now, that is 24 1/2 cents f. o. b. Chicago, bill of lading attached, and if I can get the sugar shipped to-morrow you will take it?" Appellant answered, "Yes; but let me know this afternoon." It is evident that the parties have agreed to one and the same set of propositions. The appellant was then, in the evidence, offering to buy from appellee a fixed quantity of sugar, with immediate shipment, at the price of 24 1/2 cents a pound f. o. b. cars at Chicago, and was giving the appellee until "this afternoon" as a specified time in which to accept the proposal. And appellee agreed to give a final answer to the appellant "this afternoon" as to whether it could sell and deliver the 500 bags of sugar for immediate shipment on the next day. The evidence then shows that appellee within the time specified of "this afternoon" did make known to appellant his ability to get the sugar loaded for immediate shipment and of his acceptance of the full terms of the agreement. The legal effect of the evidence is that of a completed contract between the parties. And the conclusion from the evidence is, we think, that the appellant proposed and offered to buy the sugar on the terms fixed by it, and that appellee consented to sell and accepted the offer to buy the sugar on the terms fixed in the offer.

This acceptance occurred in the evidence, in Tyler, Smith county. A part of the cause of action, within the meaning of the article of the statute referred to, then arose in Smith county, and the trial court did not err in so holding, and in overruling the plea of privilege.

The judgment is affirmed.