Texas Portland Cement Co. v. Carsey , 3 S.W.2d 930 ( 1928 )

The appeal is predicated upon the contention that the defendant is entitled to have the question of whether it was liable on the claim which the plaintiff was asserting against it tried in another county. Clearly so, unless the suit was, as found by the trial court, within the special class of cases provided in section 23 of article 1995, R.S.; section 23 reading:

"Suits against a private corporation, * * * may be brought in any county in which the cause of action, or a part thereof, arose."

In this section suits against a private corporation are expressly made local to the place where the "cause," either as a whole or "a part thereof," arose, although the defendant corporation may not have its domicile therein. The added phrase, "or a part thereof," has the effect, for the purpose of the venue, to divide the cause of action and permit the trial to be where any portion of the cause has arisen; otherwise the phrase would be without meaning and effect. The venue might be in the county in which the plaintiff's primary right arose, or it might also be in the county in which the defendant's wrongful act was done. The petition of the appellee states primarily a suit for special damages for alleged breach of warranty as to quality or grade of cement shipped. The contract of sale was an executed one, and the price paid. It was alleged that the wrongful act of the defendant and the special damages sued for occurred at place of destination of shipment, in Greenville, Hunt county, where the suit was brought.

The grounds of objection by the defendant are, in substance, that there was no privity of contract between the plaintiff and the defendant, and that there was no cause for suit in Hunt county or any county. It is claimed that the evidence, as well as pleading, goes conclusively to show the contract of defendant to sell the cement was directly and solely with Moore Bros. Lumber Company, local dealers in Greenville. There is strong evidence tending to establish such fact. But since there is evidence in behalf of the plaintiff having the effect to show a contract with defendant through agency, supporting the trial court's conclusion, it is not for this court to weigh the same, and we are bound to hold that this phase of the case, for the purposes of the appeal, has been sufficiently established with reference to venue.

The pleading and evidence of the plaintiff is to the effect that the contract of sale was in fact, in purpose and intent, made between the plaintiff and defendant, using merely the name of Moore Bros. Lumber Company, and paying such company for its services. It is unnecessary to go into the details of the arrangement, since it may not be determined as a pure matter of law that the arrangement or transaction testified about with Moore Bros. Lumber Company for the sale of the cement at a stipulated price, with discount, in inward meaning, purpose, and intent, did not clothe Moore Bros. Lumber Company with the authority of a special agent to effect the sale and make delivery for defendant. And there is evidence tending to show that under such arrangement the agreement to furnish and to accept and use the cement was made in Greenville. As testified by appellee, the delivery was to be in Greenville, and he paid the price there; the Moore Bros. Lumber Company receiving the price and paying the freight for the defendant. Joe Morgan, who, it was claimed, negotiated the sale and brought about the arrangement and transaction and agreement, was the authorized salesman of the defendant. It is further made to reasonably appear that the alleged wrongful act sued upon and the damages all occurred in Greenville.

The objection that there was no contract or privity of contract relates to the right of the plaintiff to recover at all. In determining the defendant's rights to the place of trial, in accordance with the venue statute, the trial court, in acting on such motion, may assume that the cause of action is of the character the petition purports to state, and cannot decide issues in the nature of defense that might arise later upon demurrer or in trial of the merits. Beaumont Cotton Oil Mill Co. v. Hester (Tex.Civ.App.) 210 S.W. 702. It is sufficient if there is evidence going to show a cause of action, or a part thereof, in the particular county. In a plea of privilege, the only question raised is whether the defendant is entitled, upon the evidence on the motion, to a trial in another county. The present case is not entirely unlike that of Pittman Harrison Co. v. Boatenhamer (Tex.Civ.App.) 210 S.W. 972.

The judgment is affirmed.