Southwestern Grain & Seed Co. v. Blumberg ( 1913 )

On Motion for Rehearing.

The cases cited by appellant are not applicable to the facts of this case. Because a bill of lading is regarded as a quasi negotiable instrument, as held in Railway v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 Am. .St. Rep. 861, would not constitute it a promise to deliver corn in Bexar county, which had been contracted to be delivered in Guadalupe county. The uncontradicted evidence showed that the corn was to be delivered in Se-guin, and sending the bill of lading to appellant in San Antonio did not destroy that contract.

In the case of Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399, the corn was to be delivered in the county in which the buyer resided, and of course the court held that, the contract being in writing and to be performed in the county of the buyer, the seller could be sued in that county. No such facts exist in this case.

If appellees had agreed to deliver the corn in Bexar county and had sent appellant, .through a bank, bills of lading with drafts attached, then this case could be brought within the scope of the decision in Callender v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366, and Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399.

The facts in the cage of Planters’ Oil Co. v. Whitesboro Oil Co., 146 S. W. 225, might have applicability if appellees bad sued appellant for the price of the corn in Guadalupe county, as it might have been contended that there was no written contract to pay for the corn in that county, although it was to be delivered there.

In order for the bill of lading with draft attached to form a written agreement to perform the contract in Bexar county, it would be absolutely necessary for them to be based upon a contract to deliver the corn in Bexar county. No such agreement was made.

The motion is overruled.