
    HEID BROS., Inc., v. SMITH-JAMES GRAIN CO.
    (No. 2979.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 20, 1924.)
    Venue <@=>7 — Venue of suit on seller’s guaranty of weight of shipment at destination is in county to which article is to be shipped.
    Venue of suit on seller’s guaranty of weight of shipment at destination is in county to which article was to be shipped, though contract was made in another county, where buyer’s offer was accepted and title passed on delivery to carrier.
    Appeal from Smith County Court; D. R. PencUeton, Judge.
    Action by the Smith-James Grain Company against Heid Bros., Inc. From judgment overruling plea of privilege, defendant appeals.
    Affirmed.
    The appeal is from the judgment of the county court of Smith county, overruling the appellants plea of privilege to he sued in El Paso county, its domicile and place of business. The appellee, a partnership doing business at Tyler, Tex., sued appellant, a private corporation with principal office and place of business in El Paso, Tex., for breach of a contract for the sale of alfalfa hay, alleging that the contract was in writing, and that the delivery was to be made in Tyler, Smith county, Tex. The alleged breach of the contract was that the hay shipped was short in weight, and did not grade “choice alfalfa.”
    The hay was bought by appellee through a broker at Longview, subject to confirmation by the El Paso office of appellant. The hay ordered was to be shipped to appellee at Tyler, shippers’ order, draft attached to bill of lading. The draft was paid by appellee at Tyler according to its terms. The order taken for the hay stipulated for three cars choice alfalfa hay, to run 33 or more bales to the ton, no rust. The written confirmation ‘ of the order by appellant reads:
    “El Paso, Texas, August 6, 1923.
    “To Smith-James Grain Company, Tyler, Texas:
    We confirm sale to you this date, August 6, 1923, by wire through H. 0. Bennett of three cars choice alfalfa hay, price $27.50 per ton delivered, shipment prompt, on terms draft bill of lading attached, destination weights within 2 per cent. It is agreed that this confirmation is a part of the contract, and its receipt without objection or immediate notification to Heid Bros., incorporated, of error herein is acknowledgment of the contract as above. Heid Bros., Inc. by Joseph Heid.”
    Simpson, Lasseter & Simpson, of Tyler, for appellant.
    Bulloch, Ramey & Story, of Tyler, for ap-pellee.
   LEVY, J.

(after stating the facts as above).

It is clear, as urged by appellant, that the contract between the parties was made In El Paso, the place where the acceptance of the offer was given by appellant. But the seller was bound by a special agreement connected with the sale of guaranty of weights “within 2 per cent.” at “destination” of the shipment, which was Tyler. In view of this covenant the case is controlled as to venue by the cases of Scott & Mayhall v. Lobbock Grain & Coal Co., 113 Tex. 127, 252 S. W. 164, and Patterson v. Smith Bros., 113 Tex. 147, 252 S. W. 1058. The case of Scott & May-hall,'above, expressly affirms that the venue of the suit on guaranty, by the seller, of weight of shipment at destination, is in the county to which the article was to be shipped, whether or not by the contract of sale title passed to the purchaser on delivery to the railway company for transportation. On the authority of these cases, the judgment is affirmed.  