San Antonio Drug Co. v. Scales ( 1930 )

SMITH, J.

At tbe time tbe matters in controversy transpired, O. P. .Scales owned two distinct drug businesses in Del Rio, which be operated under tbe trade-names of Central Pharmacy and Pbinn Drug Company, respectively, under tbe agency and managership of P. W. Townsend.

On May 16, 1929, tbe San Antonio Drug Company a wholesale dealer in drugs and drug store fixtures received, accepted and filled tbe following order for drug store fixtures from tbe “Pbinn Drug Company”:

“Fixture Order

“San Antonio Drug Company

“San Antonio, Texas

“Name: Pbinn Drug Co.

‘•‘Address: Del Rio, Texas

“Shipping Instructions: F. O. B. Del Rio

“We agree to pay for this and subsequent orders at San Antonio, and interest thereon from date of shipment, at tbe rate of eight per cent per annum.”

(Here follows list of articles ordered.)

“Ship tbe above order subject to tbe Terms and Conditions on reverse side of this sheet which tbe undersigned agrees to as part of this contract.

“Pbinn Drug Co.

“P. W. Townsend.

“Del Rio, Texas.”

“Terms: 10% — 170.00 cash. Bal. 12 notes for $127.50 each.”

At other times tbe San Antonio Drug Company sold and shipped certain goods (tbe nature of which is not disclosed in the record, but presumably drugs) to tbe “Central Pharmacy,” upon open account, and thereafter brought this suit in Bexar county, against Scales as tbe sole owner of said pharmacy, for tbe amount of said account. Scales, conceded to be a resident of Yal Verde county, filed a plea of privilege to be sued in said county, whereupon tbe plaintiff drug company filed its controverting plea, alleging that tbe goods in controversy were sold to Scales under and by virtue of the provisions of tbe written agreement of tbe Pbinn Drug Company, in which it was stipulated that payment of purchases thereunder were to be made in Bexar county; that by reason of that agreement Scales bad contracted in writing to pay the open account thereafter purchased and here sued on, in Bexar county. Tbe trial court sustained tbe plea of privilege, and ordered tbe cause transferred to Val Verde county. ■ Tbe San Antonio Drug Company, plaintiff below, has appealed.

Tbe appeal presents the question of whether or not the stipulations in tbe written order for fixtures for Scales’ business operated as the Pbinn Drug Company may be extended to open accounts subsequently incurred in behalf of Scales’ business operated as tbe Central Pharmacy. Tbe two concerns were operated separately, under different trade-names and at different locations, but both were owned by Scales and operated by Scales’ agent and manager, Townsend.

Tbe fixtures covered by tbe original order were purchased by and sold to “Pbinn Drug Company,” upon a written order in which it was stipulated that tbe purchaser should “pay for this and subsequent orders at San Antonio, and interest thereon from date of shipment, at tbe rate of 8% per annum.” The order was signed, simply, “Pbinn Drug Co., P. W. Townsend.” On the other band, this suit is to recover upon an Open account subsequently sold to “Central Pharmacy," and without express reference to the prior written contract with the Phinn Drug Company.

It is contended by appellant that the stipulation in the written order for fixtures for the Phinn Drug Store, requiring the purchaser jo pay for that “and subsequent orders at San Antonio,” extended to and bound Scales upon all subsequent purchases made on open account in behalf of the Central store, and, particularly, that it bound him to pay the open account thereafter incurred for the Central store, and here sued on, at San Antonio.

We are of the opinion that it was not intended, by the exception in the venue statute relied upon by appellant, that the citizen may be deprived of his valuable right to be sued at his own domicile by such a far-fetched implication as that insisted upon by appellant. The transaction covered by the written order was for fixtures, upon which the seller reserved a lien in an instrument constituting an inseparable part of that order, whereas this suit was upon an open account covering sales of drugs through a different period; the fixtures were for a drag store operated separately under a distinct name at one location in Del Rio, whereas, the open account was for drugs sold for a different store, operated under a different name, at another location in Del Rio. The original sale was covered by the express written agreement and lien; whereas the-debt sued on was concededly upon open account, wholly disconnected from the former transaction. We think that if the parties had intended that the stipulations governing the original sale of fixtures for the ■ Phinn store should apply to and govern all ■future sales of every character for the Central store, they would have expressed that intention more specifically and clearly than by the implication sought to be enforced in this suit. •

The judgment is affirmed.