I regret that I am unable to agree with my associates in the disposition of this case. The record shows without dispute that the only communication appellee had with appellant was that appellee read and acted upon the following advertisement in the Semi-Weekly Farm News: "Farmers, Plant Mebane and Kasch. Two best varieties. Beat the weevils and insects and get top prices. Make best by test. I have both varieties. Grown last year from pedigreed seed. I will ship c. o. d. subject to inspection and let you be the judge. My seed are machine-culled and tagged out according to your State and Seed Laws. $4.00 sack of 3 bushels. Freight paid in Texas and Oklahoma. $4.50 in Arkansas and Louisiana. Read my ginner and bankers' recommendations below. Get the facts first. Order now."
After appellee read said advertisement he wrote appellant at Whitewright, Tex., the following letter: "Please ship me 18 bushels of your choice 1926 Mebane cotton seed. Enclosed you will find check for same, $22.50. Please ship to Kosse, Texas." When appellant received said letter and check, he delivered the 18 bushels of cotton seed, tagged as required by the state department of agriculture under article 1702 Criminal Statutes (Pen. Code 1925), to the freight agent, prepaid the freight, and obtained therefor a bill of lading, and the seed were shipped to appellee at Kosse, Tex.
In my opinion, appellee having paid for the cotton seed at Whitewright, and thereafter appellant having delivered same to the freight agent at Whitewright, freight prepaid, and consigned to appellee at Kosse, the title thereto became vested in and was the property of appellee. Cleveland v. Williams, 29 Tex. 204, 94 Am.Dec. 274; Owens v. Clark,78 Tex. 551, 15 S.W. 101; Downey v. Taylor (Tex.Civ.App.) 48 S.W. 541; Keller v. State (Tex.Cr.App.) 87 S.W. 669, 1 L.R.A. (N.S.) 489; Ehrenberg v. Guerrero (Tex.Civ.App.) 225 S.W. 86. Under the undisputed facts as testified to by appellee, appellant did everything he agreed to do, namely, ship to appellee, freight prepaid, to Kosse, Tex., 18 bushels of cotton seed, tagged as required by the state department of agriculture of this state.
I think the opinion as written is in direct conflict with the holding of the Supreme Court in Marcus v. Armer, 117 Tex. 368, 5 S.W.2d 960,961, 60 A.L.R. 672, where, in answer to a certified question, the Supreme Court used this language: "Under the original oral contract, the sellers' obligations were to be performed at Bertram in Burnet county. Under the contract the buyer was bound to pay the purchase price, less his deposit, in cash. Upon the specific [cotton] seed contracted for being put aside in a deliverable state and the balance of the purchase price being paid, the property in the seed would have passed at Bertram to the buyer. Cleveland v. Williams, 29 Tex. 209, 94 Am.Dec. 274; Owens v. Clark, 78 Tex. 551, 15 S.W. 101. Any breach of the contract by the sellers, such as that arising from inferior quality of the goods shipped, would have arisen at Bertram."
As I interpret the record in this case, the act of appellee in paying appellant the full purchase price of the cotton seed at Whitewright, Tex., and appellant's setting aside the particular 18 bushels of cotton seed and tagging them according to the agreement, and paying freight to Kosse and delivering same to the transportation company, made a completed transaction in Grayson county, and fixed the venue in said county for any damage that appellee might be entitled to by reason of the cotton seed being, as said by the Supreme Court in the case above cited, "of inferior quality." Appellee's only complaint in this case is that the seed were of an inferior quality, in that they would not germinate. *Page 580