Houston Packing Co. v. Cuero Cotton Oil & Mfg. Co.

[395] GRAVES, J. Appellant, Packing Company, was sued in De Witt county by the appellee, Cuero Cotton Oil & Manufacturing Company, upon tlie cause of action here involved, instead of in Harris county, where the defendant company’s domicile and principal office were located, and it complains upon this appeal of the overruling of its plea of privilege» to be sued in its home county. No other question is presented. The material facts were these: Both litigants are Texas corporations; the domicile and principal office of the Packing Company being, as stated, in Harris county, and in the city of Houston, while that of the Cuero Oil Company was in Cuero, De Witt county. Mr. Terrell, a broker of such products, by calling up the manager of both) these companies in their offices in Houston and Cuero, respectively, from his own office in Houston,. arranged by mutual agreements through' telephone conversations on September 27,1917, for the Packing Company to sell the Cotton Oil Company a tank carload of cotton seed oil for delivery in January following. On the next day the Packing Company confirmed this agreement by sending to the Cuero Oil Company, at Cuero, the following contract in writing: “Houston Packing Company. “Contract No. S. C. 1791. “Cuero Cotton Oil & Manufacturing Co., Cuero, Texas “Houston, Texas, Sept. 28, 1917. “Gentlemen: We confirm sale of cotton seed oil to you as follows: “Date of sale: September 27, 1917. “Broker: E. H. Terrell & Co. “Quantity: One (1) tank car loads, each of 160 barrels capacity. • “Grade of oil: Prime crude cotton seed oil. “Contents of each tank to be considered on its own merits, as to weight, quality, and refining loss, irrespective of any other carload or shipment. “Shipment to be made January, 1918. “Price, $1.18 per gallon, loose, f. o. b. TCP. “Terms: Demand draft with bill lading attached, on Cuero Cotton Oil & Mfg. Co., for full amount of invoice, without exchange. “Weight and quality is guaranteed at destination. “Tank cars: Shipment to be made in buyer’s tank cars, and routing to be at buyer’s direction. “Remarks: The present rules of the Texas Cotton Seed - Crushers’ Association regulating transactions in cotton seed products, modified by the foregoing specific terms and conditions, to be part of this contract, and, subject to such modifications, all differences which arise are to be settled in accordance with said rule. “Houston Packing Company, “[Signed] T. E. Maurin. “Accepted: - 191 — , “Cuero Cotton Oil & Mfg. Co., “[Signed] Per Thornton Hamilton, Manager.” Thereupon, when this document reached him in his office at Cuero, Mr. Thornton Hamilton, the Cotton Oil Company’s manager, just as he had from the same place the day before done over the telephone with reference to the preliminary verbal agreement it evidenced, accepted the written contract, either by signing his name to it as appears from its terms, or by recognizing and acting upon it as valid and binding without, signature, that formality not being necessary under (the rules of the Texas Cotton Seed Crushers’ Association. Then in May, 1918, the Cotton Oil Company, in filing this suit in De Witt county for the breach thereof, consisting of the failure to deliver the car of oil as agreed, declared upon this contract in writing, alleging, among other things, that the cause of action forming its basis, as well as a part thereof, arose there, and that the defendant Packing Company had an agent and representative in that county, within the meaning of subdivision 24 of article 1830, Revised Statutes, in the person of M. D. Bennett. In addition to the facts already stated, and upon the agency issue, it was shown upon the hearing that this Mr. Bennett, upon wh'om service was had against the Packing Company in the suit, was and for 20 years before had been a representative of that company; that he lived permanently in Cuero, De Witt county, and operated as the company’s agent and representative in seeking out, soliciting, and buying cattle for it in a large scope of territory extending from Cuero west to the Rio Grande river, being regularly employed by it in such capacity on a salary; that his headquarters for carrying on the business were in Cuero; that there was almost a constant run of cattle from southwest-.Texas to the plant of the Houston Packing Company, which had been passed on, bought, and accepted by Mr. Bennett on the range for the company, and that in buying the cattle he issued to the sellers memorandum c.on-trafcts on blanks furnished to him for the purpose by it — no contract or trade he ever made for the company having been repudiated, and its business consuming well nigh his-entire time. We conclude that, upon both grounds alleged, the venue was properly laid in De Witt county. A contract is made at the place where it is accepted, and that the one in writing for the breach of which this action was brought was confirmed and accepted for the Cotton Oil Company by Mr. Thornton Hamilton in the company’s office at Cuero is shown by the undisputed evidence; having been so confirmed and accepted in De Witt county, it was therefore made there.- - Cuero Cotton Oil & Mfg. Co. v. Feeders’ Supply Co., 203 S. W. 79; Life Ass’n v. Harris, 94 Tex. at page 35, 57 S. W. [396] 635, 86 Am. St. Rep. 813; Wright v. Graves, 198 S. W. 998. And if made in that county, this suit for damages for the breach of the contract was at least in part a cause of action that arose there, for “cause of action,” as used in our statute, is uniformly held to include both the contract itself and the breach of it. Railway v. Hill, 63 Tex. 381, 51 Am. Rep. 642; Mortgage Co. v. Weddington, 2 Tex. Civ. App. 373, 21 S. W. 576; W. Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324; Iron Works v. Reeves, 43 Tex. Civ. App. 254, 95 S. W. 739. That under the facts shown Mr. Bennett was an agent or representative of appellant in De Witt county, within the meaning of subdivision 24 of article 1830, is in our opinion .equally clear; the applicable portion of that provision is this: “Suits against any private corporation, association or joint-stock company may be commenced in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or .company has an agency or representative, or in which its principal office is situated.” It will be noted that the disjunctive form of expression in what is otherwise also a rather broad designation is used, indicating, as we think, that no particular kind of representative, at least, was meant, even if that was in mind with reference to the sort of agency intended. While it may be true, as was said in Mangum v. Milling Co., 95 S. W. 605, and Plow Co. v. Biggerstaff, 185 S. W. 341, especially in the circumstances in those cases appearing, that no mere nomadic drummer or traveling salesman would constitute such an agent or representative as the quoted statute contemplated, Bennett’s status here presented quite a different situation; he was the regularly employed representative of the Packing Company, and had been for more than 20 years, was paid a monthly salary, and operated as the corporation’s only representative in a large territory, with actual headquarters for the business at Ouero, where he permanently resided; and surely he was forwarding the particular line of business for which it was organized and acting for it, within the purposes of its incorporation, in procuring for it the cattle it was engaged in slaughtering and marketing in the form of prepared meats. See Bay City Iron Works v. Reeves, 43 Tex. Civ. App. 254, 95 S. W. 740, supra. Believing that no error was committed in overruling the plea of privilege, the judgment is affirmed. Affirmed.