Burtis v. Butler Bros.

228 S.W.2d 938, 1950 Tex. App. LEXIS 2002
CourtCourt of Appeals of Texas
DecidedMarch 13, 1950
Docket5982
StatusPublished
Cited by11 cases

This text of 228 S.W.2d 938 (Burtis v. Butler Bros.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burtis v. Butler Bros., 228 S.W.2d 938, 1950 Tex. App. LEXIS 2002 (Tex. Ct. App. 1950).

Opinions

LUMPKIN, Justice.

This is an appeal from an order overruling a plea of privilege. Appellee, Butler Brothers, sued appellant, T. S. Burtis, a resident of Madison County, Texas, on an itemized account and sought to maintain venue in Dallas County, Texas, under Subdivision 5, Article 1995, Vernon’s Annotated Civil Statutes, which provides that venue shall be fixed in the county wherein the defendant contracted in writing to perform an obligation. The appellant duly excepted to the order of the court and perfected an appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District. The case was transferred to this [939]*939court by order of the Supreme Court of Texas.

The instruments relied on by appellee to maintain venue in Dallas County consist of two printed forms and are headed with the words “Financial Statement.” The first form is dated 12-30-46 and is identified in the record as Exhibit C; the second is dated 1-12-48 and. is marked Exhibit B. Exhibit C is addressed to Butler Brothers and begins with these words: “For the purpose of obtaining credit or extension of time on notes or open account from you we make the following true statement of our assets and liabilities; and agree to immediately notify you of any material change in our financial condition.” Then follows such headings as “business assets” and “business liabilities” and “summary of profit and loss for previous year.” At the bottom of the page is this statement: “The foregoing statement has been carefully read (both the printed and written matter), and is in all respects complete, accurate and truthful. It discloses to you the true state of my (our) financial condition on the 30th day of December, 1946. Since that time there has been no material unfavorable change in my (our) financial condition; and if any such change takes place I (we) will give you notice. Until such notice is given, you are to regard this as a continuing statement. All bills payable in Dallas.”

This financial statement is signed by T. Smith Burtis, the appellant. At the bottom of the page is the word “over.” On the reverse side is to be found the heading “Record of all Real Estate Owned.” About halfway down the page appear these words: “Do not write below this line.” The remainder of the page is obviously intended as an address should the statement form be folded for mailing. On this portion appears this address printed in the following fashion:

■ "Use letter postage here.”

“BUTLER BROTHERS Box 2339 Dallas 1, Texas

“Credit Dept.”

The square with the words “Use letter postage here” will be observed to the right and above the address.

The second financial statement, identified in the record as Exhibit B and dated January 12, 1948, is similar to the instrument described except that it is signed “Ben Franklin Store, by T. S. Burtis.” On Exhibit C the appellant fails to give an address, but on Exhibit B the address given is Madisonville, Texas.”

The case was submitted to the court, sitting without a jury, upon an agreed statement of fact. Omitting those portions not pertinent to this appeal, the stipulation of the parties contains the following information :

The parties agree that the pleadings and the order of the trial court setting the case for hearing on the question of venue are sufficient to raise the issue of venue and that none of these instruments need be included in the transcript of the record on appeal. The parties agree that the only question presented to the trial court was whether the case should be tried in Dallas County or in Madison County.

The appellee is an Illinois corporation with a permit to do business in Texas and maintains a place of business in Dallas, Dallas County, Texas. The appellant resides in Madison County, and he admits signing the two financial statements described above, but he does not admit that the words and figures on the reverse side of each of the printed forms, i. e., Butler Brothers, etc., constitute a part of either financial statement. He contends that thqse words and figures merely constitute a post-office address in the event the form should be mailed to appellee and points out that the official postal guide lists eight post-offices in states other than Texas with the name of Dallas. The appellee, however, contends that the words and figures of the address constitute a part of the two financial statements executed by the appellant. The parties agree that the venue of their cause of action will be determined by the answers made to these questions:

1. Is the address quoted on the reverse side of Exhibits C and B a part of each financial statement ?

[940]*9402. Does each financial statement constitute a contract in writing sufficient to bring this suit on open account within the meaning of Subdivision 5 of Article 199S?

3. Are the words “All bills payable in Dallas” appearing immediately above the signature of the appellant on each of the financial statements, sufficient to designate Dallas as Dallas County, Texas, or a definite place therein, within the meaning of Subdivision S?

4. Does the address, “Butler Brothers, etc.,” when read in connection with the words “All bills payable in Dallas” expressly name Dallas County, Texas, or a definite place therein, within the meaning of Subdivision 5 ?

• The parties agree that the appellee has sold and delivered merchandise to the appellant of the value of more than $500 on an open account and that the account is past due and demand was made therefor before appellee filed this suit.

The first question which logically presents itself to us is whether the two financial statements, or either of them, are sufficient to constitute an obligation in writing within the meaning of Subdivision 5. As noted above, each of the statements begins with the words “For the purpose of obtaining credit or extension of time on notes or open account from you we make the following true statement of our assets and liabilities * * *.” This portion of the statement closes with these words: “All bills payable in Dallas.” In our opinion these words are to be construed to mean that in consideration for the open account and credit granted the appellant by the appellee, the appellant agrees to pay at Dallas the bills incurred by virtue of the credit extended. At the time he executed the two statements the appellant agreed that his statement as to the assets and liabilities was complete, accurate and truthful and that if the appellee would sell him merchandise, he would pay for it in Dallas. The appellee accepted the appellant’s offer by selling him goods from time to time. The financial statements refer to no particular delivery of merchandise but undoubtedly cover all accounts incurred by the appellant with Butler Brothers after the date of the first statement, and in our opinion each statement is an obligation in writing sufficient to maintain venue in Dallas under Subdivision 5 of the Venue Statute; that is, if we can answer the following question in the affirmative. Traylor v. Blum, Tex.Sup., 7 S.W. 829; Lange v. Jones, Tex.Civ.App., 261 S.W. 378; A. Harris & Co. v. Cook, Tex.Civ.App., 62 S.W.2d 205.

The next question is more difficult to answer.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Associated Press v. Berger
460 F. Supp. 1003 (W.D. Texas, 1978)
Hancock v. Texaco, Inc.
520 S.W.2d 466 (Court of Appeals of Texas, 1975)
Rotex Manufacturing Co. v. Little Dude Trailer Co.
416 S.W.2d 511 (Court of Appeals of Texas, 1967)
Lone Star Gas Co. v. Coastal States Gas Producing Co.
388 S.W.2d 251 (Court of Appeals of Texas, 1965)
Burrus Mills, Inc. v. Hein
378 S.W.2d 85 (Court of Appeals of Texas, 1964)
Ervay, Inc. v. Wood
373 S.W.2d 380 (Court of Appeals of Texas, 1963)
Nelson v. Dunigan Tool & Supply Co.
265 S.W.2d 680 (Court of Appeals of Texas, 1954)
Burtis v. Butler Bros.
228 S.W.2d 938 (Court of Appeals of Texas, 1950)

Cite This Page — Counsel Stack

Bluebook (online)
228 S.W.2d 938, 1950 Tex. App. LEXIS 2002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burtis-v-butler-bros-texapp-1950.