Clint V. Turner sued Ralph Hughes, W. D. Maples, and R. V. Arnold, all residents of Hardeman county, alleging that they were partners under the firm name of Hughes Co., engaged in the business of cotton brokers, which business they had conducted in the town of Sinton, and had bought from plaintiff 50 bales of cotton to be delivered at Sinton, Tex., on or about August 4, 1914, at the price of 12.75 cents per pound, basis middling; that plaintiff tendered said cotton on August 4th, and Hughes Co. refused to accept the same; that on said date cotton was worth only 9 3/4 cents per pound, basis middling; that he was compelled to sell at that price and lost $758.
Arnold failed to answer. Maples filed a plea of privilege, and answered generally. Hughes filed a plea of privilege to be sued in Hardeman county, and subject to said plea answered generally, especially denying, under oath, the partnership alleged and that Arnold and Maples were his agents.
A verdict upon special issues was returned, and judgment entered thereon in favor of plaintiff against all the defendants for $757.77, with interest. Only Hughes appealed.
We conclude that under the undisputed facts the appellant's plea of privilege should have been sustained, and that the court erred in submitting issues relating thereto, to the jury, and, upon their answers thereto, overruling said plea. The only contract in writing was constituted by confirmations of the sale and purchase. The confirmation of the sale stated that Turner had sold to *Page 88 Hughes Co. 50 bales of cotton f. o. b. Sinton, basis middling, at 12.70 cents per pound, The confirmation of purchase added nothing to the contract, but merely showed assent to the terms stated in the confirmation of sale. The obligation alleged to have been breached by Hughes was that of paying for the cotton. This obligation was not performable at Sinton under the terms of the written contract. We think this case is governed by the following decisions: Bomar Cotton Oil Co. v. Schubert, 145 S.W. 1193; Ogburn-Dalchau Lumber Co. v. Taylor,59 Tex. Civ. App. 442, 126 S.W. 48; Casey v. Carr, 148 S.W. 601; McCammant v. Webb, 147 S.W. 693.
As between the plaintiff, Turner, and defendants Maples and Arnold, who have not appealed, the judgment of the trial court will not be disturbed, but as between plaintiff and appellant Hughes it is reversed, with instructions to sustain the plea of privilege and dismiss that part of the case. Ft. Worth Horse Mule Co. v. Smith, 149 S.W. 200; Galveston D. G. Co. v. Mitchell, 171 S.W. 278.