General Portland, Inc. v. Witt & Son Sand & Gravel, Inc. (589 S.W.2d 514, 1979)

HALL, Justice.

Plaintiff-appellee Witt & Son Sand & Gravel, Inc., brought this suit in Somervell County against defendant-appellant General Portland, Inc., Trinity Division, for $14,-777.00 asserting that defendant had breached a contract to purchase sand and gravel from plaintiff. The basic allegations in plaintiff’s petition were that defendant had failed to receive, and accordingly had failed also to pay for, the minimum amount of material it was bound to accept and pay for under the contract.

Defendant filed its plea of privilege to be sued in Dallas County, the county of its residence. Plaintiff controverted the plea of privilege on the ground that the suit could be maintained in Somervell County under the provisions of subdivision 5 of Article 1995, Vernon’s Tex.Civ.St. After a hearing without a jury, the plea of privilege was overruled. Defendant appeals. We reverse the judgment.

Subdivision 5 of Article 1995 provides that if a defendant has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place therein in the writing, then suit upon that obligation may be brought against the defendant in that county.

In its pertinent parts, the contract sued upon provided that plaintiff agreed to sell and defendant agreed to buy a minimum of 10,000 tons of sand and gravel per month at the price of 85