Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-27
COURT OF APPEALS.
Fall TeA q Decisions Rendered n he Forl
Worth District

and L. w Stevens, associate justiccs,
w l.. HUFF, clerk.
appellant. vs. Weddingion, Slalon a Sears
appeliecs. Appeal FROM the district court
" 10y W OPINION
Some time IN May. 1881, appellant ond ap.
pelecs eitcrod into a contract by which np.
pciieos were to procure loans fur appellant
upon country real estate IN Clay county
Tex. upon the terms set forth ~ q rate
this contract On an loans from t,loo 60 Si0oA
at 10 per cent Interest; appeuees were roe
gmred 20 obtain their COMPREHENSION ,l,u ifoM
at 10 per cent interest appellant WAS 90 pay
appellees q commission ~ = per cvni ant
appclees would also obtain such audiu9ial
might be able TO do on loans lfom slvW
10 N3uoO W. per cent interest "ppriiMt
was 10 receive In addition to such Interest
q premium of J per cent on loans over
S8Oku. at s. per cent interest nppchcos were
20 obtain their compensation iroin the hof'
ROVER. by the terms ~ TINS contract an
pellaut was g. make loanf wun such land
Ia Clay county through NO other person.
ard appcllpes were 60 piNcNrc loans upon
such lands Tor no othW COMPANY. me ume
FOR the conunuapcc OF TITS Wfhncpnlcnt
was not specified. The contract was made
Ia Clay county, Tex
Ia the SUMMER OF iSSN appellant ncFo-
tiated a loan with liyers Hrus FOR StN-
90, and with a. B Sanhpru Tor SN.utW
both secured hy morigage upon land VA
tiaN county. These luuns Mtfr made
through Nn agent Othor than nppchecs ana
nppcllcps Instituted this suit To reCover
OF appellant "a commission uf per cunt
Thereon, ns damages Tor tie breach ~ said
contract hy g. 10 this suit appellant plCad-
gu thnt it WIS n foreign corporation doing
business IN the state under q permit nom
the secretary of state, and that its princ-
pa ollce wgS.Au Dalne county ana that
county ANA ylatucd its right To Zoe sued iu
| Dallas county Upon the trial or THIS pira
the court ueiOw Instructed the lury iO und
against tie same. AMI nppnWhlH htHt
assignment OF error calls lu question tue
correctness OF this notion 81 the court.
The twenty first exception 90 article lins
the venue Of suits provides; "lmt suits
against any private vorpui alton, asspciA'
ton on JOINT Stock company, may hr rvW.
ncnccd nt Uuy county TN which the cause
~ notion or q part thereof nroso, on iu
which such corporation, association ON cum-
pahy, has un agency OF representative, or
IN which lta principal office is Situated"
| To determine where cause ut action arose
or accrued within the meaning ~ statutes
Of THIS Kind, frequently presents questions
of considerable difficulty. Appellant con-
| tends that this statute has special rofci.
| cnce 10 the place OF performance nnd that
"a suit could only hc maintained in the
| ~ the contract was 90 perform Sos part
! thorpof. but we are Of opinion that this
! construction OF the statute Vs. too rcstrlctcL
! liy the terms oi the tOntrnct those lunns
| were 10 ho secured upon lAuds situated IN
| CLAY county The contract was mude IN
| clay county, Appcllr,H resided iu Clay
| least the greater part ~ thrlr work would
Zoe done In that county. IhcY were niu-
| poycd because they lived in 10
liclt lorns there Appellant oy the
| terms of the contract, was 30 send "a agent
| "a Clay county to examine aud pass upnu
! the value VI the funds upon Which inc louna
| were to be secured. Under snoh % contract
Tor n breach thereof. We believe that the
cause ~ action should be held iu have
arisen. az least Ia port IN Clay county
way vs. llill dd rcXns hl illlllD vs.
NV the. ~ Texas, leii burst ys. Swift IL
The evidence was undlspucl as 10 the
tcrua NJ the contract and the muuner ih
which N was 20 be- performed and there
was therefore no error in the court lu.
Strucung the jury 20 hnd against appel.
lants plea OF privileges. Appollocs also
| cputrud that appellant WniyCd itH plea Of
| privilege 10 be- sued I'm pallas county by
| umc answering to the merits ~ the case,
| and u must bc conceded thRt theio "a an
ungunrdcd expression contained ia ihr Opii-
| lon Va the ease Of Railway vs. iraweeR, ~
| view, but we are VI opinion thnt the ease
| or HALLWAY va. Whitclcy " Texas. 1875 is
more I'm point and should Dee followed. This
| ease huldg mat where these pleas are nlpd
| In hue order, an answer 90 the merits does
| not waive Il plea ~ this Kind. We under.
| stand the York case referred 70 IN the opiu-
| 10 be given 10 such pleading hs
un appearance whom hud hy
q non.reaident, aud does not apply 10 me
| agent IA this state. Ia such cases lie yruuo
| L. prescribed by the statute uhOyp quoted.
Ia making the loans 10 Flyers Bros and
| Srnnuln appellant acted entirely trnuuli
| other parties. and these luans Wpro made nt
| rate of interest mot uuthdrizvd hY the
| rate sheet fuwishrd "A npptliNrs. iiy che
| terms of the contract, however. appellant
| had no right during NJ continuance tO make
| loan Of This Hind nt any tnte of Interest
/ except through nppsleos rnWin Wri ca-ct
! whore application was made t0 n u should
/ have referred the parties ip nipcipts 90
| enable them 10 negotiate the luuu aud ole
| tain Hurh compensation from the narrower
/ as they might Doc able 10 secure. There ia
| evidence In the record which tends 10 show
| that in addition ~ the rate OF interest on,
| pp.lant Wes 20 receive upon these lonus
1 there was also pall RI commission 10 the
/ agent through whom the same was negd.
/ tlaten. Ihc court after charging ulhu
| other Issues iu the case, gave the following
| charge on the measure N dHmHgoa which
| is complained or hy appellant tu wit:
III you hrd, under the foregoing inktruc.
/ ti0us that plaintiffs are entitled 10 Recover
| or snnhout loan, or both OF them, chen you
| VIII mud for plaintiffs what would have
/ heen reasonable compensation FOR ihp
| making OF said l0an on lOans, hnh they
/ been permitted 10 make the aHne'
/ fury must have understood H. the court be-
| low held tho law 10 be that II appellant
| NnlntNN ilN contract w iuutlNk thlan loans
| appellces would he entitled 20 recover rpnH
| enable compensation not measured by tho
/ terms OF the contract Tor making loans
| Of that kind. even though thoy performed
| no service in making same A. 80 under,
/ STOOD We hellpro the charge Go De erroneous
! Whore one party 10 a contract n prevented
Il By the other from earning profits thcreuu,
dcr and the amount ~ such pront TINT
| would have been curned can bc reasonably
| Rscrrtnlned from the evidence. this viii
| furnish the measure ~ damages. NtIliWAy
| W. I'M supra; Tel 20 VIZ. ifnWsu. ~
/ Texas 49, 'iM. 60. w. Browuib sd Ia
| this cnse " the Jury under The evidence
should mud that had THESE loans boen 80.
/ fcrfed 20 nppellces, they would hnyc ronl.
| ized the commissions That were Uald 10 tlD
/ agent who did negotiate thOu, or N tnp
| evidence should reasonably show that they
would have been able 10 have obtained q
| greater commission than Was paid thry
/ should BE- allowed 10 recover tho amount
| that was so lost In other Worda We he,
/ ilpNu that the compensation that apnrllprI
| would have been enabled 10 secure ftliu tho
/ borrowers. had they been permitted tn ne
| nre % their damages FOR being deprived al
I the opportunity 90 earn The same, " tot,
/ can be reasonably aHrerihinrd from the Nti
! dcnCr. In 2nd ScdRWiCk on dniuupcf see
! go 10 n said, t"Ihc compensation ~ a Acr.
| want 0r agent often depends upon con
| OF The contract by the employer pfpPeutt
| the happening OF the contingency, hp viii
| not be- allowed hy taking advantage ~ his
| own breach Of cuntfnri 20 prevent the plain
/ iin FROM recovering compensation alto
| gether u, in such q, case ihg amount %
/ III win be- allowed 10 recover 4, though
| through the defendanm default the c9utin
! ecncy upon which n WAS PAYABLE haa ..iol
| happened Thus where paipqu wos % re