#### EMPIRE MINING COMPANY, Inc., et al., Appellants, v. INTERNATIONAL METALS CORPORATION et al., Appellees.

No. 13356.

Court of Civil Appeals of Texas. San Antonio.

June 4, 1958.

Rehearing Denied June 25, 1958.

*677James C. Brady, San Antonio, for appellant.

Vinson, Elkins, Weems & S earls, R. E. Morse, Jr., Dempsey J. Prappas, Houston, for appellee.

W. O. MURRAY, Chief Justice.

This is an appeal from an order of the 57th Judicial District Court of Bexar County, Texas, sustaining the defendants’ plea of privilege to be sued in Harris County.

This suit was instituted by Empire Mining Company, Inc., a Texas corporation, and David McD. Shearer, its president, against International Metals Corporation and Alfred F. Knoll, individually and as Executive Vice-President of International Metals Corporation, seeking to recover damages for breach of contract and for slander. The defendants filed pleas of privilege to be sued in Harris County, Texas; the defendant corporation being a foreign corporation, having an office in Harris County, and defendant Knoll having his residence in that county.

Plaintiffs controverted these pleas and sought to hold venue in Bexar County, under Exceptions 23 and 27 of Art. 1995, Vernon’s Ann.Civ. Stats. Exception 23 provides, among other things, that suit against a corporation may be brought in a county in which the cause of action or a part thereof arose, while Exception 27 provides the same thing with reference to foreign corporations. So, if the cause of action herein sued upon, or a part thereof, arose in Bexar County, appellants were entitled to maintain this suit in Bexar County.

Appellants contend that they received a letter from appellees dated August 29, 1957, which was an offer to enter into a contract with appellants, and that this offer was accepted by them by telephone conversation from San Antonio; that thereafter appellees breached this contract, and therefore they have a right to maintain this suit in Bexar County.

The letter which appellants assert was an offer to contract with them reads as follows :

> “August 29, 1957

> “Colonel David McD. Shearer

> “446 E. Hildebrand Avenue

> “San Antonio 12, Texas

> “Dear Colonel Shearer:

> “I enjoyed the visit with you in San Antonio August 11 and feel that I have a better grasp of the entire situation; although I feel that several things need to be adjusted or corrected.

> “Your letter of August 14 was very much appreciated and was thoroughly studied by the Board of International Metals. Of particular interest, of course, was the summary which set forth the anticipated profits for copper and uranium on the monthly and annual basis. I am personally fascinated by these figures, but as you said, they are almost too good to be true. •

> “As you already know, our corporation has advanced the sum of $25,000, and I feel confident that additional investment will be made. However, as I stated to you in San Antonio, the raising of additional capital is greatly enhanced if the interests of each individual, as well as the J. A. S. Com*678pany, Empire Mining Company, and Winston Milling Company is set forth in a proper legal instrument, whether it be a partnership, joint venture or corporation, if the maximum benefits can be made to accrue to the greatest number. I would like to discuss this point on my next visit to San Antonio.

> “We of International Metals are awaiting the report of Mr. Earl regarding Empire. If we are given a favorable opinion, we would be very much interested in further investment. In that regard, I would like to have your reaction to the following proposal :

> “International Metals will advance additional $25,000 on or about September 15, 1957, if an option for an additional $50,000 in the same share basis will be granted for a 90 day period. That means we are willing to advance $25,000 on our present knowledge, for the privilege of having the option for further evaluation. That would make our total investment $100,000 and would strengthen further financing.

> “May I hear from you at your earliest convenience.

> “Very cordially yours,

> “/s/ Alfred F. Knoll

> “Alfred F. Knoll, M. D.

> “Executive Vice President

> “International Metals

> AFIC/jk”

This letter shows on its face that the offer, contained in the last paragraph, is based upon the condition that appellees receive a favorable opinion from Mr. Earl, and was conditioned further by the statement, “I would like to have your reaction to the following proposalThe letter was therefore only a conditional offer and it could not be made into a contract by a simple acceptance by appellants.

The trial court did not err in sustaining the pleas of privilege. The judgment is affirmed.