Landa v. F. S. Ainsa Co. , 1921 Tex. App. LEXIS 365 ( 1921 )

This is an appeal from an order overruling a plea of privilege filed by appellants to be sued in Comal county where they reside. There were several defendants who were partners and engaged in business at New Braunfels in said county, under the firm name of Jos. Landa. The material facts are undisputed and are as follows:

The parties entered into and signed a memorandum of the sale of certain flour, the material portions whereof read:

"Joseph Landa, New Braunfels, Texas sell(s), and F. S. Ainsa Co. buy(s), the following commodities, on the terms and conditions stated herein:

Time of shipment, within sixty days.

Destination, El Paso, Texas.

Routing, seller's option.

Terms of payment, cash. Draft, with bill of lading attached, through ______ Bank of ______. Prices in this contract are for delivery to carrier at shipping point, with freight allowed to El Paso, Tex., on basis freight rate in effect on date of sale. * * *

"Invoices against this contract are payable in New Braunfels, Tex., with interest at the rate of 8 per cent. per annum after maturity."

The flour was shipped from New Braunfels. The bill of lading consigned the same to order of Jos. Landa, destination El Paso, Tex., notify F. S. Ainsa Co.

To cover the purchase price Landa drew a sight draft on F. S. Ainsa Company and attached the bill of lading thereto. The draft and bill were sent to an El Paso bank and taken up by appellee. The flour was then delivered to appellee, and it was alleged that same was wormy, weevil infested, had a bad odor, and inferior to the sample upon which the sale was made. This suit was to recover damages sustained by the failure to deliver flour conforming to sample.

Under the authorities, the memorandum of sale and the bill of lading when taken up by appellee obligated appellants to deliver the flour in El Paso county. The obligation being in writing and performable in El Paso county, a suit for damages for its breach may be maintained in that county under subdivision 5, art. 1830, R.S. Seley v. Williams,20 Tex. Civ. App. 405, 50 S.W. 399; People's Ice Mfg. Co. v. Interstate Cotton Oil Ref. Co., 182 S.W. 1163; Callender, Holder Co. v. Short, 34 Tex. Civ. App. 364, 78 S.W. 366; Darragh v. O'Connor, 69 S.W. 644; Cecil v. Fox, 208 S.W. 954; Gaddy v. Smith, 116 S.W. 164; Bell County Co. v. Cox, 33 Tex. Civ. App. 292, 76 S.W. 607; Harris v. Salvato, 175 S.W. 802.

The two cases cited by appellants are not in point. In our opinion they are clearly distinguishable.

In the suit appellee also sought to recover damages for the breach of another contract for the sale of flour which contract was made about the same time as the one above discussed. Venue in El Paso county as to the cause of action upon this latter contract is not so clearly shown by the evidence, but in order to avoid a multiplicity of suits it was proper to embrace the suit thereon in this action. Middlebrook v. Bradley Mfg. Co.,86 Tex. 706, 26 S.W. 935.

Affirmed.