Heid Bros., Inc. v. Smith-James Grain

267 S.W. 1044

Opinion

LEVY, J.

(after stating the facts as above).

It is clear, as urged by appellant, that the contract between the parties was made In El Paso, the place where the acceptance of the offer was given by appellant. But the seller was bound by a special agreement connected with the sale of guaranty of weights “within 2 per cent.” at “destination” of the shipment, which was Tyler. In view of this covenant the case is controlled as to venue by the cases of Scott & Mayhall v. Lobbock Grain & Coal Co., 113 Tex. 127, 252 S. W. 164, and Patterson v. Smith Bros., 113 Tex. 147, 252 S. W. 1058. The case of Scott & May-hall,'above, expressly affirms that the venue of the suit on guaranty, by the seller, of weight of shipment at destination, is in the county to which the article was to be shipped, whether or not by the contract of sale title passed to the purchaser on delivery to the railway company for transportation. On the authority of these cases, the judgment is affirmed.