Landa Cotton Oil Co. v. Mutual Refining Co. ( 1922 )

The proposition on which appellant relies is that —

"There was no written promise on the part of appellant to perform any part of the contract in Grayson county; therefore venue could not be properly laid in Grayson county against appellant's plea of privilege."

The broker's contract, accepted and acted on by the parties, was reduced to writing in the form of a "memorandum of sale." The writing evidences a contract of sale and purchase of a given quantity of cotton seed oil, of a special quality. The oil was to be paid for in Sherman by the appellee, through sight draft drawn on appellee by the appellant. The sight draft was to be attached to the bill of lading. The particular quality of the oil, as per the attached sheet of analysis of the oil, was guaranteed at destination, which was Sherman. The memorandum of the broker, reducing the terms of the trade to writing, became the contract of both parties, and binding upon both. It is believed that the court did not err in ruling that the venue of the suit was properly placed in Grayson county. People's Ice Mfg. Co. v. InterState Cotton Oil Refining Co. (Tex. Civ. App.) 182 S.W. 1163; Pittman Harrison Co. v. Sanders (Tex. Civ. App.) 234 S.W. 412; Landa v. Ainsa (Tex. Civ. App.)231 S.W. 175; Keller v. Mangum (Tex. Civ. App.) 161 S.W. 19.

The particular circumstances in this record, all considered together, evidence the intention that the delivery be made and the title to the property pass in Grayson county. By the bill of lading the oil was delivered to the order of the seller, prima facie reserving to the seller the right of disposal. The attaching of a draft for the purchase price to the bill of lading would corroborate or strengthen the inference that the title was not intended to pass at the time of the delivery to the carrier; and the essence of the contract was that the oil would be of the special quality stipulated at the destination of shipment. Any disagreement arising as to the quality of the oil being "as per attached analysis" was to be determined by the parties, at the point of "destination" and at the time of the arrival of the shipment there. The terms of the contract, the conduct of the parties, and the circumstances of the case Show, we conclude, an intention, and create an obligation, on the part of the appellant to deliver and transfer the oil to appellee in Grayson county.

The judgment is affirmed.