This is a motion to file a petition for a writ of mandamus, in which it is sought to compel the Chief Justice and associate justices of the Court of Civil Appeals for the Second Supreme Judicial District to certify a question of law to this court under the Act of May 9, 1899. That act makes it the duty of a court of civil appeals, when its opinion is in conflict with the decision of any other court of civil appeals, to certify the question for the determination of the Supreme Court. The question which the relators seek to have certified arose in the Court of Civil Appeals for the Second District in a cause entitled Shirley Holland v. Gainesville Cotton Seed Oil, Gin and Mill Company, which was appealed to that court from the County Court of Cooke County and in which the judgment of the trial court was affirmed. The suit originated in the Justice Court of Gainesville Precinct of Cooke County.
The question was, should the defendants' plea of privilege to be sued in the county and precinct of their residence have been sustained? The Court of Civil Appeals held that the trial court did not err in overruling that plea. The relators claim that this decision is in conflict with that of the Court of Civil Appeals for the Fourth District in the case of Borden Antill v. Le Tulle Mercantile Company (74 S.W. Rep., 788); but we are of the opinion that there is no conflict.
In the present case, the facts which gave rise to the cause of action are as follows: The Gainesville Cotton Seed Oil, Gin and Mill Company wrote to Shirley, one of the defendants, offering $17 per ton for cotton seed delivered at Gainesville. Shirley replied by letter: "You can book me for two cars at that price." Under that contract Shirley Holland, as partners, shipped to the oil company at Gainesville a quantity of cotton seed in bulk and drew a draft upon the latter for the price with a bill of lading attached. The draft was paid upon presentation. Two other shipments were made under the contract and were paid for upon drafts drawn in the same manner. In each shipment the quantity of the seed fell short of that drawn for, and for these shortages the oil company brought suit against the sellers in the Justice Court in Gainesville. The defendants being residents of Denton County pleaded that it was their privilege to be sued in that county. That was the question in the present case. *Page 65
In the case of Borden v. Mercantile Company the following were the facts: The appellants were residents of Harris County, but had a rice plantation in Matagorda County. It seems the appellees were doing business in the latter county at Bay City. The appellants bought supplies for their farm from appellees, and it also seems that the suit was for a balance on that account. There was no contract in writing about the matter save the orders of the appellants' foreman, which contained no promise to pay in Matagorda County. The only evidence tending to show any promise or any expectation that the goods were to be paid for in that county was the fact that the accounts made out by the appellees contained the statement: "Terms thirty days; all accounts payable at Bay City." Clearly this was no promise by appellants to do anything. In that case the court sustained the plea of privilege and dismissed the suit.
In the present case there was a promise in writing to deliver the cotton seed in Gainesville, and the suit was for a failure to deliver according to the promise.
It is apparent, therefore, that there is a broad distinction between the two cases, and that the decision in the one in no wise conflicts with the ruling in the other.
There being, in our opinion, no conflict between the two decisions, the motion to file the petition for the writ of mandamus is overruled.
Overruled.
OPINION ON MOTION FOR REHEARING.