W. T. Rawleigh Co. v. Cooper. , 1937 Tex. App. LEXIS 1505 ( 1937 )

Fred Sherley and others entered into a written contract with the appellant by which the former guaranteed and promised to pay to said company any amount that might be then or thereafter due and owing to the company for merchandise sold and delivered to Hightower. The effect of the instrument was to constitute the makers thereof guarantors for Hightower. The instrument provided, "that all accounts or indebtedness incurred hereunder are payable at Memphis, Tenn., or at Bonham, or at any other point in Texas, at the option of the Company."

This suit was brought by the company in Fannin county against Hightower and the makers of the instrument above mentioned to recover the purchase price of goods, wares, and merchandise sold by the company to Hightower. Two of the makers of the instrument filed pleas of privilege to be sued in the county of their residence. Upon hearing of the pleas they were sustained and judgment rendered accordingly.

The only question presented by appellant is whether or not the quoted portion of the contract is sufficient to authorize the maintenance of the suit in Fannin county, of which Bonham is the county seat, under subdivision 5 of the venue statute, article 1995, as amended by Acts 1935, c. 213, § 1, Vernon's Ann.Civ.St. art. 1995, subd. 5. This contract does not obligate the makers thereof to perform in any particular county in this state within the meaning of said subdivision 5. Under the terms of the contract the defendants could be required to pay at Memphis, Bonham, or at any other point in Texas, at the option of the appellant.

Under the authorities the quoted provision of the contract is insufficient to authorize the suit in Fannin county. McManus v. Texas Development Bureau, Tex. Civ. App. 73 S.W.2d 655; Bryson v. Oliver Farm Equipment Sales Co., Tex. Civ. App. 61 S.W.2d 147; General Motors, etc., Corporation v. Hunsaker, Tex. Civ. App. 50 S.W.2d 367; Turner v. Ephraim, Tex. Civ. App. 28 S.W.2d 608; General Motors, etc., Corporation v. Christian, Tex. Civ. App. 11 S.W.2d 620; W. T. Rawleigh Co. v. John W. Karnes et al., 103 S.W.2d 431, decided by the Court of Civil Appeals at Texarkana, on appeal from Fannin County, on March 18th, 1937, which is a companion case to this one.

Affirmed.