On Motion for Rehearing.
Appellant renews with -greater vigor the contention that the written grain contracts involved in this suit are insufficient in legal effect to authorize appellee’s suit in Tarrant county. That the written contracts were within exception 5 to article 1830, Rev. Statutes, seemed so plain that we did not dwell upon this phase of the casé in our original opinion. But, in deference to the earnestness of counsel for appellant, we will add to the quotation therefrom noted in our original opinion that the contracts provided for a price per bushel “basis f. o. b. Tex. c/p for shipment * * * terms destination weights and destination grades.” By the terms of the contracts the grade of oats purchased was “No. 3 or better” and “exchange and inspection fees to be paid by shipper.” It seems evident that by the terms of the written contracts the grades and weights of the oats to be shipped were determinable in Tarrant county, and the contracts hence partly performable in this county, and conferred upon appellee under said exception 5 to article 1830,' the right to sue in the court of the trial. At,least we are unable to distinguish'this case from cases cited in our original opinion, and particularly from the case of Scott & Mayhall v. Lubbock Grain & Coal Co. (Tex. Com. App.) 252 S. W. 164, cited in the case of Patterson v. Smith Bros. Grain Co. (Tex. Com. App.) 252 S. W. 1058, noted in our original opinion.
Counsel for appellant makes this further contention:
“It seems to ns that the holding of the Supreme Court in the case of International Travelers’ Association v. Branun, 109 Tex. 543, 212 S. W. 631, is decisive that the provision in the alleged written contracts for the adjustment of differences in Tarrant county, Tex., is void as an attempt to deprive other courts of venue of any suit upon the contracts, and the cause should be reversed and remanded with instructions.”
The case referred to in the quotation was decided by our Supreme Court. It was held in that case that a stipulation between an *782accident insurer and its policy holder, for exclusive venue in the county of the insurer’s residence, was void as against public policy. We do not think, however, that the ease controls the one before us. There the stipulation between the contracting parties was direct and specific in its object to take away rights conferred upon the insured by the venue statute, but in the case before us the contracts in material1 particulars have no reference to venue. The object of these contracts is to secure grain of certain grades and weights in stipulated anlounts delivered in Tarrant county, and thereby, regardless of the stipulations relating» to adjustment of differences, the appellee had the right to sue in the. latter county as an indirect consequence. We know of no law which specifically confers the right of making a contract such as was declared -void in the Supreme Court decision. The Legislature, in exception 5 to article 1830, expressly recognizes written contracts performable in counties as agreed upon and expressly declares that where such a contract is performable in “any particular county” then suit may be brought “in such county,” or where the defendant has his domicile. To give the construction and effect contended for to the case of International Travelers’ Association v. Branun, 109 Tex. 543, 212 S. W. 631, cited in appellant’s quotation, would be to destroy the force and effect of exception 5 to the general venue statute, d consequence we cannot think was intended by our Supreme Court.
Motion for rehearing will accordingly be overruled.