(concurring).
I agree that the judgment of the trial court should be reversed and the court instructed to enter an order transferring this case to the District Court of Potter County, Texas.
The plaintiffs’ suit is in the nature of an accounting in which damages are sought by reason of the alleged failure of Shamrock to pay the correct amount of royalties in accordance with the terms of the oil and gas leases. It is undisputed that royalties are being paid. The crux of the case is whether or not the royalties are being computed at the correct rate under the terms of the leases; that is to say, the principle element of the cause of action to be proved in the venue hearing is that of payment.
Appellees, in relying on Subdivisions 23 and 27 of Article 1995, contend they have alleged and proved that the cause of action “or a part thereof” arose in Sherman County; and that the significant fact which activated the obligation to pay was the production of gas in Sherman County. The fact production of gas was obtained in Sherman County is an evidentiary matter. Proof that production was had, in addition to the amount of production, will be essential on the trial of the case on its merits in order to establish the amount of damages, if any; but production itself does not constitute a part of the cause of action for venue purposes. As the essential element of the cause of action for venue purposes is that of payment, and since no place of payment is stated in the leases, no exception to the general rule of venue at the domicile of the defendant is involved. Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120. Although the Rorschach case involved Subdivision 5 of Article 1995, the reasoning and conclusions therein expressed are applicable to the case at bar. Whatever obligation Shamrock owes to the appellees, it is owed under the lease contracts.