Summary
In Coffee v. Haynes, 124 Cal. 561, 57 P. 482, 71 Am. St. Rep. 99, it is said the above holding in the Nerac Case was not necessary to a decision.
Summary of this case from Holmes v. KingOpinion
No. 3830.
May 11, 1939. Rehearing Denied June 8, 1939.
Appeal from Lamar County Court; R. V. Hammack, Judge.
Suit by Joe H. Haynes against the Duncan Coffee Company to recover commissions for the sale of certain products for the defendant under a written salesmanship contract. From a judgment overruling a plea of privilege, the defendant appeals.
Affirmed.
Samuel H. Peak, of Houston, for appellant.
Moore Moore, of Paris, for appellee.
The appellee Haynes brought this suit in Lamar County against Duncan Coffee Company to recover $435.05 alleged to have been earned as commissions for the sale of certain products of defendant under a written salesmanship contract executed on or about July 1, 1932. The defendant, a Texas corporation domiciled in Harris County, pleaded its privilege to be sued in said county. Controverting affidavit was filed by the plaintiff alleging the venue was properly laid in Lamar County because plaintiff's cause of action arose in whole or in part in Lamar County and the defendant is a corporation and had a representative in said county. The plea was overruled, and the defendant appeals.
At the request of the defendant the Court filed its findings and conclusions, in which it was found that the defendant is a Texas corporation and had a representative and local agent in Lamar County. This finding is not challenged.
The propositions submitted in the appellant's brief in substance are that plaintiff failed to establish a prima facie cause of action against the defendant and there is a fatal variance between the contract of employment pleaded and that proved. These propositions present no ground for reversal for it was shown, and the Court found, the defendant to be a Texas corporation with a representative or local agent in Lamar County. This finding fixed the venue as being properly laid in said county under Art. 1995, Sect. 23, R.S. Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, 981; De Shong Motor Freight Lines v. North Texas Coach Co. (Tex.Civ.App.) 108 S.W.2d 766.
Affirmed.