Shirley & Holland v. Conner

The opinion of the Court of Civil Appeals in this case was as follows: The assignments presenting the question of the alleged error of the court in refusing to sustain the appellant's plea of personal privilege to be sued in Denton County, in the precinct of their residence, are overruled, because we are of opinion that the principles announced in Seley v. Williams, 50 S.W. Rep., 399, 20 Texas Civ. App. 405[20 Tex. Civ. App. 405]; Darragh v. O'Connor, 69 S.W. Rep., 644, and Callender, Holder Co. v. Short, 9 Texas Ct. Rep., 85, are conclusive against appellants upon this issue. It is true these cases are shipper's order cases, but the circumstances attending the present transaction indicate to our minds the intention upon the part of the parties to the present controversy that the title to the cotton seed should not pass until actual delivery in Gainesville, as fully as though the seed had been consigned shipper's order. We think the letters, and especially the bills of lading with drafts attached, evidence such intention, and are sufficient at least to support the court's judgment. The language of exception 4, article 1585, Revised Statutes, and of exception 5, article 1194, is substantially the same, and neither, in our opinion, requires an express promise in writing promising performance in a county or precinct, other than that of the residence of the defendant, to fix the venue against such nonresident. We are also of opinion that the principle announced in Gimbel v. Gomprecht, 35 S.W. Rep., 470,89 Tex. 497, has no application to the pleadings in this case upon the question of jurisdiction of the subject matter, but that the court rightly retained jurisdiction, and that the judgment should be affirmed. Opinion delivered March 26, 1904. *Page 64