On Appellee’s Motion for Rehearing.
Appellees urge that we misunderstood or misquoted the record in stating that the place of delivery was Goldthwaite, and assert that the record shows that the prices agreed on were on “basis f. o. b. Texas com-1 mon points.” The statement in our opinion to which reference is made is as follows:
*648“But we are inclined to the belief that in this case, where the defendant was obligated only to place the oats f. o. b. at Goldthwaite,” etc.
In the statement of facts in a number of confirmations, signed by appellees, the statement appears “basis f. o. b. Goldthwaite.” We did not decide in our opinion that a no-vation of the contract for the June and July shipments had been effected by subsequent agreements, but did decide that there was evidence to sustain a finding by the jury that the plaintiff had agreed with defendant, for a sufficient consideration, to extend the time of delivery, first from July to August, and then from August to September, 1919. That if these extensions of the time of delivery were in fact made, that the contracts thereby evidenced superseded and abrogated the original contract. We understand what is meant by a novation, as stated in 20 R. C. L. p. 366, § 8, and page 371, § 14; Street v. Smith Bros. Grain Co., 255 S. W. 778, by this court; Pierce Fordyce Oil Ass’n v. Woods, 180 S. W. 1181, by this court, writ denied; 29 Oyc. 1130, and authorities cited.
Nor in this statement as to the place of delivery, do we think we are in conflict with •our former opinion in Street v. Smith Bros. Grain Co., 255 S. W. 778, or the other authorities cited by appellee.
In Patterson v. Smith Bros. Grain Co., 113 Tex. 147, 252 S. W. 1058, it was shown that Patterson wrote to Smith Bros. Grain Company the following letter:
“Dallas, Texas, -July 14, 1920.
“Smith Brothers Grain Company, Fort Worth, Texas — Gentlemen: This will confirm sale to you, to-day, four cars No. 3 red oats, sacked in even weight new bags at 87½ f. o". b. Texas common points, fiat billing shipment this week to you at Fort Worth, destination, weights and grades. I thank you for this business.
“Tours very truly, W. H. Finley.
“For the account of O. E. Patterson, Celeste, Texas.”
The evidence further showed that Patterson drew a draft on Smith Bros. Grain Company, payable at Fort Worth, and attached to the bills of lading, and which was paid. Suit was for a shortage in weights. The evidence disclosed that Patterson did not surrender the grain until the drafts were paid and the Commission of Appeals held, on certified questions from this court, that the venue was in Tarrant county, where the grain was in fact delivered. In Street v. Smith Bros. Grain Co. (Tex. Civ. App.) 255 S. W. 778, there was an additional reason given for holding that the county where the grain was to be delivered had venue, for the contract provided - that “any difference arising between buyers and sellers, who are parties to this contract, are to be adjusted at Fort Worth, Tex.”
'But in the instant case, we were not determining the place of venue in which suit might be filed for a failure to deliver, but merely where appellant was required under the contract to deliver the grain under his contract. As to that duty, we held in our former opinion, and hold now, that he was required only to deliver f. o. b. at Gold-thwaite.
Motion for rehearing is overruled,