Pool Co. v. Hydra-Rig, Inc.

626 S.W.2d 320, 1981 Tex. App. LEXIS 4365
CourtCourt of Appeals of Texas
DecidedNovember 19, 1981
Docket18626
StatusPublished
Cited by6 cases

This text of 626 S.W.2d 320 (Pool Co. v. Hydra-Rig, Inc.) 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
Pool Co. v. Hydra-Rig, Inc., 626 S.W.2d 320, 1981 Tex. App. LEXIS 4365 (Tex. Ct. App. 1981).

Opinions

OPINION

HOLMAN, Justice.

This appeal is from an order overruling the appellants’ pleas of privilege. Appellee relies upon Tex.Rev.Civ.Stat.Ann. art. 1995, subdivisions 23, 27, and 29a (1968), to maintain venue in Tarrant County.

We affirm.

Appellee manufactures oil field equip'ment in Tarrant County, known as hydraulic pulling/snubbing units.

Appellee sued appellants in district court, Tarrant County, for damages claimed for breach of contract.

It is alleged that (a) Jerry Shanklin, as representative of appellant Pool Company, orally agreed, in Louisiana, to purchase six units to be manufactured in Tarrant County by appellee; (b) appellee sent Shanklin written confirmation; (c) Shanklin then directed appellee to deliver the units to Pool Company’s Louisiana affiliate, appellant Livingston Oil Well Service, Inc.; (d) Red Wimbish, representing Livingston, came to Tarrant County and negotiated modifications of two of the units; (e) payment was received for the first two units built and delivered; (f) Shanklin cancelled the order of the four remaining units after appellee had purchased all the necessary materials and had substantially completed two of the four.

Each appellant filed a plea of privilege. Pool Company alleged itself to be a Texas Corporation with its principal office in Dallas County.

Livingston Oil Well Service, Inc. alleged itself to be a foreign corporation with a registered agent for service in Harris Coun[322]*322ty. Livingston’s plea further swears that the company is not a Texas resident, is not doing business here, and has no principal place of business in this state.

By its language, art. 1995 reserves its privilege only for persons who are inhabitants of this state. O. F. Mossberg & Sons, Inc. v. Sullivan, 591 S.W.2d 952 (Tex.Civ. App. — Austin 1979, no writ).

However, for venue purposes, a foreign corporation is a resident of the county in which its registered agent is located at the time suit is filed. Joy Mfg. Co. v. Briggs Weaver, Inc., 549 S.W.2d 768 (Tex. Civ.App.—Dallas 1977, writ dism’d).

A person with a “venue residence” in Texas may claim the privileges of art. 1995, while simultaneously a citizen and resident of another state. Fernandez v. Strong, 557 S.W.2d 528 (Tex.Civ.App.—Beaumont 1977, writ dism’d); Covington v. Eskridge, 430 S.W.2d 589 (Tex.Civ.App.—San Antonio 1968, no writ).

Because subdivision 29a must draw its foundation from other subdivisions and will not stand alone, we direct our attention to subdivisions 23 and 27.

Appellants’ pleas of privilege admit to being corporations. Appellee does not contend that either of the appellants has its principal office, or an agent or representative in Tarrant County.

Appellee does contend that its suit is for damages for breach of contract, and that the contract was partly made in Tarrant County.

Under subdivisions 23 and 27, the controverting pleas, and the facts of this case, appellee must have proven that (1) appellee has a cause of action against the appellants; and (2) the cause, or part thereof, arose in Tarrant County. Stonewall Insurance Company v. Donald, 475 S.W.2d 876 (Tex. Civ.App.—Fort Worth 1972, writ dism’d); Van Waters & Rogers, Inc. v. Kilstrom, 456 S.W.2d 570 (Tex.Civ.App.—Waco 1970, no writ); Appell Petroleum Corp. v. G. W. Townsend Lease Serv., 375 S.W.2d 547 (Tex.Civ.App.—Corpus Christi, 1964, no writ).

As to Pool Company, the appellant that is a Texas Corporation subdivision 27 will not apply. Mobile County Mutual Insurance Company v. Romack, 481 S.W.2d 916 (Tex. Civ.App.—Houston [14th Dist.] 1972, no writ).

With regard to both subdivisions 23 and 27, however, the term “cause of action” has the same meaning, Delhi Gas Pipeline Corporation v. Allgood, 492 S.W.2d 651 (Tex. Civ.App.—Tyler 1973, no writ).

A cause of action on a contract arises either within the county where the contract is made or where it is breached. El Laredo, Inc. v. Orr, 321 S.W.2d 624 (Tex.Civ.App.—Fort Worth 1959, no writ); Gleason v. Southwestern Sugar & Molasses Co., 214 S.W.2d 640 (Tex.Civ.App.—Waco 1948, no writ).

We then turn to the appellants’ eight points of error which alternately contend there was no evidence or insufficient evidence as to any of the requisite elements of proof necessary to sustain venue in Tarrant County, under subdivisions 23, 27, or 29a.

Since there are no findings of fact or conclusions of law, we must presume that the trial court made the findings necessary to support its order, if there is sufficient evidence to support such findings. Lubbock Mfg. Co. v. Sames, 575 S.W.2d 588 (Tex.Civ. App.—Beaumont, 1978, aff’d); Sheldon Petroleum Co. v. Peirce, 546 S.W.2d 954 (Tex.Civ.App.—Dallas 1977, no writ); Brazos Valley Harvestore Systems, Inc. v. Beavers, 535 S.W.2d 797 (Tex.Civ.App.—Tyler 1976, writ dism’d).

This court must indulge every reasonable intendment in favor of the decision of the trial judge. American Empire Life Insurance Company v. Hakim, 312 S.W.2d 739 (Tex.Civ.App.—El Paso 1958, no writ). Also, if there is evidence to support a presumed finding of the trial court, we must accept the evidence as true and sustain the trial court’s finding. Sheldon Petroleum, supra; Wallace v. Income Properties/Equity Trust, Etc., 538 S.W.2d 17 (Tex.Civ.App.—Austin 1976, writ dism’d).

That the appellants refuse to pay for the four remaining items of equipment is not controverted.

[323]*323The only witness in the plea of privilege hearing was Thomas L. Elliston, appellee’s president. He testified that he was personally familiar with the transactions between appellee and the appellants.

Through the witness, appellee introduced into evidence, with no objection by appellants, four written acknowledgements of the alleged verbal purchase orders. The witness’ testimony was consistent with the summary of allegations, supra.

Appellee argues that the verbal negotiations, and subsequent written acknowledge-ments from the appellees to the appellants, created the contract that is the basis for this suit. Appellee relies upon Tex.Bus. & Comm.Code Ann. § 2.204(a) (1968): :

“(a) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.”

The uncontroverted evidence shows that within ten days after each of its written acknowledgements, appellee had not received objections from the appellants. Sec. 2.201(b) of the Code provides:

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Pool Co. v. Hydra-Rig, Inc.
626 S.W.2d 320 (Court of Appeals of Texas, 1981)

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Bluebook (online)
626 S.W.2d 320, 1981 Tex. App. LEXIS 4365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pool-co-v-hydra-rig-inc-texapp-1981.