dissenting.
I respectfully dissent and would affirm the judgment of the trial Court overruling the plea of privilege.
The majority has applied to this case the rule that venue cannot be fixed by implication under Subdivision 5. The writer is of the opinion that venue is fixed in this cause by the terms of the contract in writing. “By implication” is a broad, catch-all phrase, and innumerable cases can be cited upholding it where the facts do not in anywise comport with those of this case. This case meets the rule that the obligation sued on was the particular obligation the Defendant agreed to perform. Heath v. Gilbreath, 536 S.W.2d 404 (Tex.Civ.App., El Paso 1976, no writ). The Defendant was to furnish a rotating assembly; the suit was for the failure to furnish that rotating assembly. Where did he fail to furnish it? In Crane County, the County of suit. Subdivision 5 of art. 1995 provides:
“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”
Our contract provides: “Location of Well: County: Crane State: Texas.” It further provides that the contractor and owner will each furnish certain items; among them, the contractor will furnish the drilling rig and he will furnish for it a blowout preventer, and the owner will furnish for that blowout preventer a rotating assembly. Our sole question is, where is that rotating assembly to be furnished under the terms of the contract? In essence, the contract provides that the Defendant/owner is to furnish a part of a drilling rig located in the county of suit; that is “by such writing” and not by implication. There can be no reading of the contract but that the place of furnishing is where the rig is located.
The cardinal rule of contract construction is to determine the intent of the parties, and I know of no rule that says a contract will be construed for venue purposes by different rules than for other purposes. There can be no question but that the intent of the parties to this contract was that the items to be furnished, including the rotating assembly, were to be furnished at the well location.
Items to be furnished by the owner appear in two separate lists, one by the print*694ed form and one added by typewriter. As to the equipment and materials to be furnished by the owner, the contract provides:
“The machinery, equipment, tools, materials, supplies, instruments, services and labor hereinafter listed, including any transportation required for such items, shall be provided at the location at the expense of owner unless otherwise noted hereon and otherwise provided for in Paragraph 7 hereof.” (Emphasis supplied)
This is followed by a long list of items in printed form. In another section of the contract, listed as “Special Provisions” in the printed form, is a large blank space into which is typed the provision that the “Owner Will Furnish The Following:”
“All Water-Fresh and 10.0# Brine. Cellar, Pits and reserve pit if they have to be shot with dynamite. Line reserve pit if it is to be lined. Rotating assembly for B.O.P. if needed. Bradenhead to nipple up on surface casing.”
In other words, in addition to the printed items to be furnished, the parties added the above items. Thus, we have a contract which provides that the items to be furnished by each party are to be delivered to the well location, but no such provision was typed in as to these additional items which were added. The only possible reading of the contract is that all items are to be delivered to the well location, regardless of where they are placed in the contract. The contract viewed as a whole provides for the rotating assembly to be furnished at the well location.
“It is not necessary that the written obligation be spelled out in exact terms if the contract, viewed as a whole from its four corners, clearly shows that venue of performance lies in such county. Tyson v. Seaport Grain, Inc., 388 S.W.2d 731 (Tex.Civ.App., Corpus Christi 1965, writ dism’d).”
Burdette v. Cook Industries, Inc., 544 S.W.2d 495 (Tex.Civ.App., Corpus Christi 1976, no writ).
Subdivision 5 does not require that the place of performance be stated in the same sentence with the required act. This is a lengthy contract with many terms and provisions. It differs from the simple note of Saigh v. Monteith, cited by the majority, 147 Tex. 341, 215 S.W.2d 610 (1948). With a note, the normal thing is to place the place of performance with the obligation, that is, the promise to pay would be followed by the place of payment. Our contract has a requirement for performance by delivery of named items to the well location listed thereunder. It then has other items listed in another portion of the contract. I would construe them to be subject to the same requirement of delivery, regardless of their location in the contract. Subdivision 5 says only that the place of performance be “by such writing.” “Such writing” is the contract — all of it. “By such writing,” the furnishing is to be in Crane County, the place specified in the words of the contract as the place where the drilling rig and the blowout preventer were located. “By such writing,” the Defendant is to furnish a part of a drilling rig located in Crane County.
I would affirm the judgment of the trial Court.