1. — Venue — Place of Performance.
A written contract to pay to plaintiff company a sum of money "at the principal office of the company" was one performable in the county where such office was situated, and supported venue in such county over the promisor's plea of privilege to be sued in the county of his residence.
2. — Same — Evidence.
Suit being on defendant's written promise to pay at the principal office of plaintiff, parol evidence was admissible to show the county in which such office was situated, and to sustain the venue there over defendant's plea of privilege to be sued in the county of his residence. Such evidence did not go to vary or enlarge, but only to identify the terms of the written contract.
3. — Same.
It is immaterial to the effect of the promise to pay at the payee's principal office whether or not the promisor knew in what county that office was situated.
MR. JUDGE LEDDY delivered the opinion of the Commission of Appeals, Section B.
The Court of Civil Appeals for the Second Supreme Judicial District certifies, for the determination of the Supreme Court, the question as to whether the County Court of Tarrant County erred in sustaining appellee's plea of privilege to be sued in Dallas, the county of his residence.
Appellant's cause of action was based upon an instrument in writing, wherein appellee obligated himself to pay the amount sued for at the principal office of the company, which was shown by extraneous evidence to be located at Fort Worth, in Tarrant County.
Appellee purchased certain merchandise from appellant and at the time of delivery of same signed an invoice containing the following recitation:
"Received above merchandise in good order, for which I, or we, promise to pay the above amount at the principal office of the company."
This contract on its face furnished the means by which the agreed place of payment could be determined. Extraneous proof to identify the same did not tend to vary, modify or enlarge the terms of such contract, but only served to identify the particular place where the parties agreed payment should be made. Morrison v. Hazard, 99 Tex. 583, 92 S.W. 33; Smith v. Texas N. O. Ry. Co., 101 Tex. 405, 108 S.W. 819; 22 C. J., p. 1192, Sec. 1593, p. 1194, Sec. 1595.
Even though it required parol proof to identify the particular place where payment was agreed to be made, the contract is nevertheless one in writing, within the statute conferring jurisdiction in the county where a party has contracted in writing to perform a particular obligation. Strange v. General Motors Acceptance Corp., 2 S.W.2d 255; Goliad Supply Co. v. G. C. Holmes Co., 251 S.W. 286.
An analogous principle is involved in the line of cases holding that a deed, which does not definitely describe the land sought to be conveyed, is not within the statute of frauds, if within the terms of the instrument, the land can be identified by the use of extraneous evidence. It is universally held under such circumstances that such a conveyance is one in writing, hence not within the statute of frauds. Herman v. Likens, 90 Tex. 448, 39 S.W. 282; Nye v. Moody, 70 Tex. 434, 8 S.W. 606; Vineyard v. O'Connor, 90 Tex. 59, 36 S.W. 424; Smith v. Westall, 76 Tex. 509, 13 S.W. 540; 18 C. J., p. 181, Secs. 62 and 63.
It is wholly immaterial whether appellee, at the time he signed the invoice containing the stipulation as to the place of payment, knew where appellant's principal office was maintained. In the absence of fraud or mistake he will be conclusively presumed to have known and understood the terms and legal effect of his contract, hence he cannot escape the binding effect thereof by asserting a lack of knowledge as to where such office was situated. The answer is he contracted to pay at appellant's principal office wherever it might be located.
We recommend the question certified be answered that the trial court erred in sustaining appellee's plea of privilege.
The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.
C. M. Cureton, Chief Justice.