Opinion
No. 3681.
April 6, 1929. Rehearing Denied April 11, 1929.
Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
Suit by the Farmers' Merchants' National Bank against W. C. Biggers Co. and another. Judgment overruling a plea filed by defendant named asserting right to be sued in another county, and such defendant appeals. Affirmed.
Appellants W. C. Biggers and R. J. Patterson resided in Ellis county, where, as partners, they engaged in the cotton business under the name "W. C. Biggers Co." One A. L. Nash was their agent for buying cotton in Kaufman county, and as such was authorized to accept drafts drawn on them to pay for cotton purchased by him on their account. This suit by the appellee Farmers' Merchants' National Bank was to recover of said W. C. Biggers Co., and of said A. L. Nash, alleged to be a member of the firm, the amount of four drafts drawn by appellee for sums aggregating $9,179.21 on said W. C. Biggers Co. "at (quoting) the Farmers' Merchants' National Bank, Kaufman, Texas," and accepted by said firm acting by said A. L. Nash. Biggers and Patterson, in a plea complying with the requirements of the statute (article 2007, R.S. 1925), asserted a right they respectively claimed they had to be sued in said Ellis county, where they resided. Appellee contested the plea on the ground that the drafts were payable in Kaufman county. The trial court agreed they were, and rendered a judgment overruling appellant's plea. This appeal is from that judgment.
Tom Whipple, of Waxahachie, and Thos. R. Bond, of Terrell, for appellant.
Wynne Wynne and Nestor Morrow, all of Kaufman, for appellee.
(after stating the case as above). The question on the record on this appeal is: Was the acceptance by W. C. Biggers Co. of drafts drawn on them "at the Farmers' Merchants' National Bank, Kaufman, Texas," an undertaking by them to pay the drafts at that bank? If it was, then appellee had a right to sue on the acceptances in Kaufman county as it did by force of the provision in the statute (article 1995, exception 5, R.S. 1925) permitting a defendant to be sued in another county than the one he resides in, when he has contracted in writing "to perform an obligation in a particular county."
If the holding of the court in Yett v. Green, 39 Tex. Civ. App. 184, 86 S.W. 787, is followed — and we see no reason why it should not be — the question should be answered in the affirmative. In that case the defendant, who resided in Coleman county, accepted a draft drawn on him at "Robert Lee, c/o Bank at Robert Lee," which is in Coke county. In reversing a judgment sustaining the defendant's "plea of privilege" to be sued in Coleman county, where he resided, the court, citing authorities, said: "According to these authorities, inasmuch as the draft was addressed to the defendant at Robert Lee, which is a town in Coke County, and was accepted by him in general terms, and not by a qualified acceptance, we conclude that it was the intention of the parties in making the contract that the debt should be paid in Coke County."
The judgment is affirmed.