McKean McNeal v. Martin

241 S.W. 782, 1922 Tex. App. LEXIS 938

• Court: Court of Appeals of Texas
• Decided: April 6, 1922
• Docket: Nos. 2514, 2516. [fn*]
• Status: Published

Opinions

To entitle him to maintain his suit in Franklin county, the burden was on appellee to prove that the obligation he sought to enforce against appellants was evidenced by a contract in writing. Revised Statutes, art. 1903, as amended April 2, 1917; Vernon's St. art. 1830, subd. 5.

It will be noted that, while appellee alleged in his petition (the averments of which he made a part of his plea controverting the plea of privilege) that when he agreed to purchase the seed October 31, 1919, appellants' agent, Baker, represented that they were sound and proper for planting, and further alleged that it was understood between him and Baker and appellants that the seed were to be used exclusively for planting purposes, he did not adduce any testimony to support the allegations. His own testimony as a witness that he purchased the cotton seed from appellants to be delivered to him in Franklin county was all the testimony there was as to the terms of that contract. As appellee's suit was not for breach of an undertaking by appellants to deliver the seed in Franklin county, but was, instead, for breach of an alleged undertaking in writing on their part to deliver seed fit for planting to appellee in that county, it is plain the action of the trial court in overruling the plea of privilege cannot be sustained on the testimony referred to; for that testimony at most only proved that appellants had undertaken in writing to deliver the seed to appellee in Franklin county, and not that the seed they delivered would be fit for planting.

It is assumed, therefore, that the theory on which the trial court overruled the plea of privilege was that the bill of lading and draft referred to in the statement above was sufficient to show that appellants contracted in writing to deliver seed fit for planting to appellee in Franklin county.

As the writer sees it, the real contract between the parties was the one made in October, before the seed were shipped the following January; and, if he did not regard it as settled that the draft and bill of lading should be treated as the contract (Seley v. Williams,20 Tex. Civ. App. 405, 50 S.W. 399; Callander v. Short,34 Tex. Civ. App. 364, 78 S.W. 366; Keller v. Mangum [Tex. Civ. App.]161 S.W. 19; Landa v. Ainsa [Tex. Civ. App.] 231 S.W. 175; Gottlieb v. Dismukes [Tex. Civ. App.] 230 S.W. 792; Pittman v. Sanders [Tex. Civ. App.] 234 S.W. 412), he would be inclined to think the right of appellee to maintain the suit in Franklin county should be determined with reference alone to the terms of the October contract.

Treating the draft and bill of lading as the contract, the question is, Did appellants thereby undertake to deliver cotton seed fit for planting to appellee in Franklin county? Plainly the draft did not evidence such an undertaking. Unless, therefore, the bill of lading was sufficient to show that appellants so agreed, the question should be answered in the negative, and appellants' contention that the trial court erred when he overruled the plea of privilege should be sustained.

It appeared from the bill of lading that the seed were consigned to appellants at Mt. Vernon, "notify" appellee. That meant that when the seed reached Mt. Vernon the carrier was to notify appellee that it held same subject to appellants' order, and that the seed would be delivered to him on the presentation to it of such an order; that is, the bill of lading indorsed by appellants. It further appeared from the bill of lading that the shipment of cotton seed it covered was "for planting." That, of course, meant the seed were sound and fit for planting. Oil Co. v. Trammell (Tex. Civ. App.) 72 S.W. 244; 2 Mechem on Sales, § 1234 et seq; 24 R.C.L. 168; 35 Cyc. 381 et seq. It further appeared from the bill that the carrier was to "allow inspection," which meant that on the presentation to it of the bill of lading the carrier was to allow the holder thereof to inspect the seed to determine whether he would accept a delivery thereof or not. So it appears from the contract that appellants, through the carrier, had possession and control of the seed after same reached Mt. Vernon (Robinson v. H. T. C. Ry. Co.,105 Tex. 185, 146 S.W. 537), and that appellee was to be allowed to inspect them before they were delivered to him. It is plain, therefore, that by the terms of the contract possession of the seed was not to pass to appellee before they reached Mt Vernon, and that delivery of same to him was to be made there. It is also plain that the seed so delivered to appellee were to be fit for planting.

As we understand the record it is not pretended that the seed were not delivered as agreed upon. The contention is that the contract was breached in that the seed delivered were not fit for planting. We do not agree with appellants that the suit could not be maintained against them in Franklin county on that ground. If the bill of lading and draft constituted a contract between them and appellee, as we feel bound to say it did in the light of the authorities cited above, and if their undertaking thereunder was to deliver to appellee in Mt. Vernon cotton seed fit for planting, as we have determined it was, we see no reason why suit could not be maintained against them in Franklin county for delivering seed which were not fit for planting. If they were suable in Franklin county at all, they were suable for any breach of the contract evidenced by the bill of lading and draft. Failure to deliver seed fit for planting was no less a breach of the contract than would have been their failure to deliver seed at all.

We have examined the authorities cited by appellants as supporting their contention, and think none of them are like this one on their facts. In Seed Co. v. Blumberg (Tex. Civ. App.) 162 S.W. 1, the undertaking of Blumberg, who resided in Gaudalupe county and was sued in Bexar county, was to deliver corn on board cars in Seguin for shipment to El Paso. In Gottlieb v. Ainsworth (Tex. Civ. App.) 229 S.W. 341, it did not appear that the bill of lading, to which the seller attached a draft was an "order" bill of lading, as here, and it appeared from other testimony that the undertaking of the seller was only to deliver the corn on board cars in Kernes county, where he resided, for transportation to Williamson county, where he was sued and where the buyer resided. In Lee v. Oil Co. (Tex. Civ. App.) 215 S.W. 977, it appeared that the oil company bought cotton seed of Lee and agreed to pay him therefor "$69 per ton f. o. b. cars Jewett." Jewett was in Leon county, where Lee resided. The suit against him was in Lampasas county. The court held that he did all he agreed to do under the contract when he loaded the seed on cars at Jewett. In Valdespino v. Dorrance (Tex. Civ. App.) 207 S.W. 649, the bills of lading were the only evidence of a contract in writing between the parties. They "only called for so many bales of cotton, and contained no statement as to the weight or class of the cotton." The suit was by the buyer in Harris county, where he resided, against the seller, who resided in El Paso county. It was to recover a sum which the buyer claimed he had paid the seller in excess of the sum he was bound to pay for the cotton, and which the seller was bound to return to him by the terms of an oral contract between them. The bills of lading being silent as to any undertaking on the part of the seller to pay to the buyer in Harris county any sum paid by the latter in excess of the sum due the seller, the court held the suit to be predicated on the oral agreement, and therefore that it could not be maintained against the seller in Harris county.

The only contention presented by the assignments on the appeal from the judgment on the merits of the case is that, appellants having given notice of an appeal from the order overruling their plea of privilege, the trial court was without power to try the case on its merits until the appeal from that order had been determined. The contention is predicated on the provision in article 1903, Revised Statutes, as amended April 2, 1917, that "either party may appeal from the judgment sustaining or overruling the plea of privilege, and if the judgment is one sustaining the plea of privilege and an appeal is taken, such appeal shall suspend the transfer of the venue and a trial of the cause pending the final determination of such appeal," and on the statement of this court in Hill v. Brady (Tex. Civ. App.) 231 S.W. 145, that the purpose of the Legislature in enacting the statute "was to have the question of venue finally determined before the cause was tried on its merits, and so avoid useless expense to the parties, as well as waste of their time and the court's, which often resulted under the practice prevailing when the statute was enacted of trying a cause on its merits before the question as to venue was settled; for under that practice, if it was determined on appeal of the cause that the question as to venue had been wrongly decided by the trial court, a reversal of the judgment followed as a matter of course."

The point, and only point, decided in the Hill-Brady Case was that a party having a right to appeal, but who fails to do so, from an order overruling his plea of privilege, thereby waives the right he otherwise would have to have the appellate court review the action of the trial court in overruling the plea. That case, therefore, cannot be treated as authority for appellants' contention. The point they make was decided by this court contrary to their contention in Halliday v. Crews, 237 S. W, 600. There is no conflict between the two cases, and we see no reason for doubting the correctness of the decision in either of them.

The judgments are affirmed.

On Appellants' Motion for Rehearing. We think the conclusion reached that the trial court did not err when he overruled the plea of privilege was in conformity to law established in this state by cases cited in the opinion, but have concluded after further consideration that said court did not have a right to try the case on its merits pending the appeal from the judgment overruling said plea. We were wrong in assuming that the question as to the court's right to try the case on the merits had been decided contrary to appellants' contention in Halliday v. Crews (Tex. Civ. App.) 237 S.W. 600. The judgment against the defendants in that case on the merits was not by default, as here, but was rendered after a trial in which the defendants participated. This court has to-day held in an opinion by Judge Hodges that the effect of an appeal from an order overruling a plea of privilege prosecuted as provided by law is to suspend the power of the court to proceed further in the trial of the case until the issue as to venue has been finally determined, and to render void a judgment by default on the merits of the case taken by the plaintiff after notice of the appeal was given and before the appeal was disposed of. Wallace v. Adams (Tex. Civ. App.) 243 S.W. 572. The Galveston Court of Civil Appeals made the same ruling, in effect, in Hill v. Wood, 238 S.W. 309. The reasons for construing that to be the effect of the statute (article 1903) are stated in the opinion of Judge Hodges referred to, and need not be restated here.

The motion will be overruled in so far as it is to set aside the order of this court affirming the judgment of the court below overruling appellants' plea of privilege, but it will be granted in so far as it is to set aside the order of this court affirming the judgment of the court below on the merits of the case, and said judgment on the merits will be reversed, and the cause will be remanded for a new trial.