On Motion for Rehearing.
The venue questions in this case were whether there was a verbal contract between appellant and one or more of the corporate defendants, such as alleged by appellant, and whether the alleged cause of action for 'breach of such contract arose in whole or in part in Smith County. Appellant’s motion for rehearing urges again that when he made proof of such contract by his own testimony, and made further proof that the contract had been breached by Cabell’s, Inc., he met all the requirements of law. He insists that further evidence in behalf of appellees that the contract as alleged by appellant did not exist, and that if it did there was no breach of such contract by appellees, but that appellant voluntarily abandoned the same, were issues to be heard and tried on the merits of the case and were not venue questions. In support of this contention appellant now cites a decision of the Austin Court of Civil Appeals in William R. Carmichael, Inc., v. Winkley, 234 S.W.2d 937, 939, and urges that our decision is in conflict with the Winkley case. We do not believe such conflict exists. In that case the decision was rendered upon evidence consisting of a letter written by the defendant to the plaintiff, and upon testimony quoted in the opinion. The testimony shows a verbal contract performed in Travis County and that the defendant was a corporation. In passing upon the case, the court remarks that the entire letter and the testimony quoted “is enough to constitute a cause of action or part thereof arising in Travis County, and hence comes within Exception 23 of Article 1995, V.A.C.S.” A cause of action on a contract consists of the contract and its breach or non-performance. Western Wool Comm. Co. v. Hart, Tex.Sup., 20 S.W. 131; United States Pipe & Foundry Co. v. City of Waco, Tex.Civ.App., 100 S.W.2d 1099, 1109; 1 T.J. p. 632, Sec. 25; 1 C.J.S., Actions, § 124, page 1387. Only evidence of the contract itself is set forth in that opinion, and we must therefore assume that the letter, the contents of which are not shown, was the evidence of a breach.
The case of Compton v. Elliott, cited in our original opinion, has been followed consistently, and, as far as we know, has never been overruled nor modified in the respects now under consideration. In that case the commission of appeals in an opinion approved and adopted by the Supreme Court, held that all the venue facts must be proved in the ordinary way, and that the truth of a fact or facts in issue must be ascertained by introduction and weighing of evidence from both sides. This the trial court has done, and his findings and conclusions were against the contentions of appellant. In the Winkley case it was the trial court that made findings and reached conclusions, and the Court of Civil Appeals merely held the evidence sufficient to sustain. It is further held in the Compton-EUiott case that review by the appellate court should not be different from review in any other case, that if the evidence is conflicting and is sufficient to support the trial court’s findings, those findings and conclusions should not be disturbed.
It is our belief that we have reached a correct decision under the law as it exists on the issues presented, and appellant’s motion for rehearing is respectfully overruled.