
    ARMER v. FLY et al.
    (No. 565-4020.)
    (Commission of Appeals of Texas. Section A.
    Oct. 15, 1924.)
    Courts &wkey;>247(7) — Conflict held to exist between decisions of courts of civil appeals warranting mandamus to require certification of question of law.
    Decision of court of civil appeals, concerning nature of contract and privilege of defendant to be sued in certain county, held in conflict with decisions of other courts of civil appeals, warranting award of mandamus. to require certification of question of law.
    Application for mandamus by L. E. Armer, relator, to require W. S. Fly and others, constituting the Honorable Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio, to certify question of law in the case of E. A. Marcus and others v. L. E. Armer.
    Mandamus awarded.
    Garrett, Brownlee & Goldsmith, of Austin, for relator.
    Judge Irelan Graves, of Austin, for respondent E. A. Marcus.
   GEBMAN, P. J.

In this cause the petitioner, L. E. Armer, is asking for a mandamus to. issue requiring the honorable Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio to certify to the Supreme Court a question of law in the case of E. A. Marcus et al., Appellants, v. L. E. Armer,' Appellee, No. 6967 on the docket of that court.

Suit was filed in the district court of Travis county July 12, 1921, by Armer as plaintiff against Marcus & Allen of Burnet county, Tex. By the pleadings it is shown that about December 1, 1919, Armer contracted with Marcus & Allen at Bertram, Burnet county, for the purchase of a carload of planting cotton seed on sample furnished by Marcus & Allen. At the time it was agreed that Armer would furnish sacks and pay for sacking the seed, a-nd pay freight to the point of destination and delivery. Marcus & Allen were to load the seed in the ear and ship them to the point of destination, which was later designated as Austin, Travis county, according to agreement. The price of the seed was $112.50 per ton, and $100 was deposited by Armer as earnest money on the contract. It was specially alleged that Marcus & Allen stipulated and provided at the time, as a part of the transaction, that they would ship the seed by “shipper’s order” bill of lading, with draft attached for the bal-, anee of the purchase money It was further alleged that, when the seed were loaded about February 14, 1920, Marcus & Allen procured a bill of lading from the railroad company, and shipped the car of seed to themselves as consignees, designating in the bill of lading Austin, Tex., as the place of delivery. They drew draft payable at Austin, on Arm-er for the balance of purchase price and attached same to the “shipper’s order” bill of lading, which was indorsed by them. The bill of lading and draft were sent to a bank at Austin, Tex., with instruction to notify Armer, and to deliver the bill of lading on payment of the draft. On being notified, Armer procured the bill of lading from the bank at Austin by paying the draft and presented same to the carrier, and the car of seed was delivered to him. On inspection the seed were found worthless and not according to the sample furnished. Suit was filed to recover the amount paid for the seed. Marcus & Allen pleaded their privilege of being sued in Burnet county. The trial court overruled this plea. On appeal the Court of Civil Appeals at San Antonio held that there was no obligation in writing on the part of Marcus & Allen to deliver the seed at Austin, or to perform the contract in Travis county, and reversed the ease with instructions to change the venue to Burnet county.

Relator alleges that this decision of the Court of Civil Appeals is- in conflict with the decisions of other Courts of Civil Appeals of this state in numerous eases. The statement of facts set out in the petition have not been controverted, and in oral argument counsel for respondents admitted that there was such conflict between this decision and some of the cases cited by relator as justified issuance of the mandamus. Without a discussion of the cases, we will state that, in our opinion, there is a conflict between the decision of the Court of Civil Appeals in this case and the decision by the Court of Civil Appeals of the Third District in the case of Gottlieb v. Dis-mukes, 230 S. W. 792. There is also conflict between this decision and that of the Court of Civil Appeals for the Hirst District in the case of Malloy v. Industrial Cotton Oil Properties, 238 S. W. 984. We have found it unnecessary to examine as to conflict with other-cases cited. -

We recommend that the writ of mandamus he granted requiring the Court of Civil Appeals to certify to the Supreme Court the question as to whether or not the trial court erred in overruling the plea of privilege under the facts as alleged and proven.

CURETON, C. J. The opinion of the Commission of Appeals is adopted, and mandamus awarded. 
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