On Motion ior Rehearing.
Appellants separately present motions for rehearing. The bank assails our conclusion in upholding the findings of the trial court relating to the bank’s plea of privilege and its plea of ultra vires. It is insisted, in substance and among other things, that the bank’s telegram cannot bring the case within the fifth exception of article 1830, Rev. Statutes, for the reason that the promise to pay was evidently to be performed in Longview, Gregg county, and not in Wise county, the place of the suit. The telegram, however, Was to “honor draft of Henry Jackson on H. H. Watson, original lading and weigh certificates attached.” The telegram, therefore, did not become an executed contract until its acceptance by the Continental Bank and a procurement of the weights and certificates thereto, and together with the bills of lading, attaching them to the draft on Watson. These acts and performances were necessarily and actually performed in Wise county by the Continental Bank, thus completing the contract and bringing the case within the fifth exception to the general statute relating to venue which appellants so strenuously urge, as we think must be seen on consideration of the decisions relating to this point cited in our original opinion.
There is a further contention on the part of appellant Watson to the effect that he was not a party to the telegram under consideration, and that therefore the venue of the suit in Wise county was not maintainable ' as against him, even though it might be as against the appellant bank under the fifth exception to the statute, and, further, that the fraud which the trial court imputed to the undisclosed agreement between appellants at Longview to pay the Jackson draft on Watson in event only the peanuts were merchantable was committed in Long-view, Gregg county, and not in the county of the suit. But, as it seemed to us on original hearing, the fraud consisted, not so much in the fact that appellants made the agreement to that effect, but rather upon the fact that the 'agreement to that effect was not disclosed to the Gontinenal Bank or *612to Jackson at the time the delivery in Wise county to the Continental Bank had been made, thereby inducing the bank and Jackson to ascertain weights, procure bills of lading, and attach certificates of weights and bills of lading to the draft on Watson, and thereby surrender, which might not otherwise have been done, possession and immediate control of the peanuts in the shipment. Appellant Watson, we think, under the evidence and findings, was clearly a party both to the telegram and to the fraud. The telegram was sent by the appellant bank with full knowledge and consent and at the instance of appellant Watson and for his benefit, in part at least. So, too, as to the duty of disclosing to the Continental Bank the qualification agreed upon between appellants as to the payment of Jackson’s draft when it came. Another contention presented in this connection is that the failure to disclose the qualification in the payment of Jackson’s draft could not operate as a fraud, for the reason that at the time of the delivery of the telegram to the Continental Bank it had already parted with its money, and that ap-pellee, Jackson, then knew from previous communications that Watson desired the purchase of dry and sound peanuts only, and that he therefore was not in any manner deceived. But we do not think the evidence makes it clear by any means that at the time the appellants sent the telegram to the Continental Bank at Boyd that it would pay Jackson’s draft on Watson that the peanuts at that time had been paid for. We think the evidence on the whole tends to show that the peanuts had perhaps been contracted for and weighed and certificates of weights and amounts due delivered to the farmers who were later paid by the Continental Bank upon the assurances of the telegram and of Jackson. At all events, if the bank in fact had theretofore paid out the money for the peanuts, they had remained in the possession and control of Jackson and the Continental Bank, and they only surrendered the possession and control upon receipt of and in reliance upon the telegram.
For the reasons now and originally stated, we think appellants’ motion for rehearing should be overruled, and' it is so ordered.
BUCK, J., not sitting.