Texas Seed Floral Co. v. Schnoutze , 209 S.W. 495 ( 1919 )

It appeared without dispute in the testimony that the contract between the parties was made in Dallas county, and it did not appear that performance thereof on appellant's part was to be in Kaufman county. Therefore, if a cause of action in appellee's favor arose in Kaufman county, it must have been because appellant breached the contract in that county by delivering cane seed there to appellee instead of broom corn seed. It conclusively appeared from the testimony that the instruction of Spikes (representing appellee) to appellant was to send the seed C. O. D. to appellee at Terrell, in Kaufman county; and that appellant, conforming to the instruction, delivered the seed to a common carrier in Dallas county, to wit, the Wells Fargo Co, Express, for carriage C. O. D. to appellee at Terrell. If the delivery of the seed to the carrier in Dallas county was in legal effect a delivery thereof to appellee, then the court erred when he overruled appellant's plea of privilege; for in that event appellee's cause of action arose in Dallas county and not in Kaufman county. 1 C.J. 1146; 25 Cyc. 1069, 1181, 1182. The rule is stated by the author of the article on "Sales" in 35 Cyc. at page 193, as follows:

"Ordinarily a delivery of goods by the seller to the carrier designated by the purchaser, or to one usually employed in the transportation of goods from the place of the seller to that of the purchaser, is a delivery to the purchaser, the carrier becoming the agent or bailee of the buyer."

There is a conflict in the authorities as to whether the rule stated applies where the delivery to the carrier was for carriage C. O. D. to the purchaser, as it was in this case.

"In some cases," said the author of the article referred to, "it has been held that the property remains in the seller until payment has been made by the buyer, the carrier being considered the agent of the seller; but in other cases it is held that where the shipment is C. O. D. the carrier is the agent of the buyer for the purpose of transportation, and of the seller for the purpose of collection, and unless a contrary intention appears the property in the goods passes upon their delivery to the carrier, although the buyer is not entitled to the possession until payment is made." 35 Cyc. 335; and see also 1 Mechem on Sales, § 793 et seq.

The Court of Criminal Appeals of this state holds to the rule that the property in the C. O. D. shipment passes to the purchaser on the delivery of the goods to the carrier, in the absence of anything showing the intention of the parties to have been to the contrary. Keller v. State,87 S.W. 669, 1 L.R.A. (N.S.) 489, where the authorities are reviewed by that court. And the Supreme Court, it seems, has adopted the same view of the question. Robinson v. Railway Co., 105 Tex. 185, 146 S.W. 537; and see Lippman v. Jeffords-Schoenman Products Co., 184 S.W. 536. We think, therefore, that the question should be treated as settled in favor of the rule adopted by the Court of Criminal Appeals and approved, in effect, by the Supreme Court. It follows we are of opinion it appeared that appellee's cause of action against appellant arose in Dallas county, and therefore that the trial court erred when he overruled appellant's plea of privilege and refusal to transfer the cause to Dallas county for trial.

The judgment will be reversed, with instructions to the court below to transfer the cause to Dallas county for trial in conformity to the direction in article 1833, Yernon's Statutes.