(218 S. W.) HODGES, J. This appeal is from an order ALTO COTTON OIL & MFG. CO. et al. v. made in vacation, appointing a receiver and BERRYMAN. (No. 2216.) (Court of Civil Appeals of Texas. Texarkana, 1. RECEIVERS 3 RECEIVERSHIPS ONLY AS granting a temporary restraining order against the appellants. The appellee is the owner of 20 shares of stock in the Alto Cotton Oil & Manufacturing Company, a private corporation organized under the laws of this state, with its domicile and place of business at Alto in Cherokee county, Tex. On September 28, 1919, he filed this suit against the Alto Cotton Oil & Manufacturing Company, F. W. Madden, president, and H. D. Madden, secre2. RECEIVERS 35(1)-NOT APPOINTED WITH-tary of the corporation, W. G. Boyle, and R. OUT NOTICE UNLESS PLAINTIFF WOULD SUF- R. Russell. The petition alleges, in substance, FER INJURY. AUXILIARY REMEDY. Receiverships are created only as auxiliary to some ultimate relief for which a suit may be instituted. that the cotton oil company had a capital stock of 250 shares of $100 each, aggregating $25,000, and on the 20th day of July, 1918, owned assets amounting to $50,000; that it owed $3,500, and had that much cash on hand. On that date the appellee owned 135 shares of the capital stock. He later sold 115 of those shares of stock to F. W. Madden for the sum of $16,500, taking Madden's notes payable in four annual installments. He also took a lien on the shares of stock conveyed. According to the appellee's information and belief Madden then had no resources other than the capital stock for the payment of the above-described indebtedness. During the month of May, 1919, the notes of F. W. Madden matured, and he was unable to pay them. While negotiations were pending between the In suit by a stockholder in a company against it and directors for appointment of re-appellee and Madden for a settlement, Madden ceiver and to restrain the directors from making sale of the assets of the company under an alleged fraudulent deed of trust, appointment of receiver on ex parte hearing held improper, in view of Rev. St. art. 1203, and the insufficiency of the verification of the petition. 5. CORPORATIONS 320(13)-GRANT OF TEMPORARY RESTRAINING ORDER WITHOUT HEAR ING ERRONEOUS. In suit by stockholder in a company against it and directors for appointment of receiver and to restrain the directors from making sale of the assets of the company under an alleged fraudulent deed of trust, grant of temporary restraining order without hearing held errone ous. conspired and confederated with R. R. Russell and W. G. Boyle, and fabricated a deed of trust, which purported to have been executed by the Alto Cotton Oil & Manufacturing Company, conveying all of its property to Boyle as trustee to secure R. R. Russell in the payment of a promissory note executed in his favor by the Cotton Oil & Manufacturing Company for the sum of $24,461.54. The note was dated July 23, 1919, and was payable within 30 days, bearing interest at the rate of 8 per cent. per annum from date. The appellee further states that he "is informed and believes and so charges that said alleged debt and the deed of trust securing same are largely fraudulent, and that defendant Alto Appeal from District Court, Cherokee Cotton Oil & Manufacturing Company does County; L. D. Guinn, Judge. not owe the said R. R. Russell any such sum as is apparently evidenced by said note, but a Action by H. H. Berryman against the Alto vastly less sum, to wit, not exceeding $13,000." Cotton Oil and Manufacturing Company and He further charges that in June of 1919 a others. From an order in vacation, appoint- stockholders' meeting was held secretly and ing a receiver and granting temporary re- without notice to him, who was at the time straining order, defendants appeal. Judg- a record owner of 20 shares of the capital ment reversed, and judgment rendered, vacat-stock of the corporation; that the "mortgage ing appointment of receiver and restraining was executed without the authority of the order, and case remanded. Kampmann, Burney & Browne, of San Antonio, and S. M. Adams, of Nacogdoches, for appellants. stockholders of the corporation or any legal board of trustees, or was authorized by such stockholders or directors as were present at a secret meeting of which the plaintiff had Perkins & Perkins and Norman, Shook & no notice:" that those facts were evidence Gibson, all of Rusk, for appellee. of a conspiracy and a scheme on the part of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes This petition contained the following verification: "Before me, the undersigned notary public in and for Cherokee county, Tex., on this day personally appeared H. H. Berryman, who, being by me duly sworn, upon his oath deposed and says that he is plaintiff in the above and foregoing petition, and has read and fully understands the contents thereof, and that the that the matters therein alleged as of informatters therein alleged as true are true, and mation and belief he verily believes to be true.” F. W. Madden, together with R. R. Russell and Boyle, to convert to their own use and benefit all of the assets of the corporation, or to use the same to the destruction of the plaintiff's property in the 20 shares of capital stock, which was of the value of at least $1,200, and to the destruction of his security. In pursuance of this conspiracy and with intent to destroy the appellee's property W. G. Boyle, at the request of Russell, on the 9th day of September, 1919, advertised the property of the Cotton Oil & Manufacturing Company for sale, in accordance with the The petition was presented to the judge of terms of the deed of trust, claiming an indebt- that judicial district, in vacation, and without edness for the full amount of the note pre-notice to the appellants an order was entered, viously described, the interest thereon and appointing F. F. Florence as receiver upon attorney's fees, the sale to take place in the his giving a bond in the sum of $10,000, and town of Rusk in Cherokee county on the 7th directing that he take charge of all the assets day of October following. It is further al- of the Cotton Oil & Manufacturing Company leged thatin accordance with the prayer in the plain "By reason of the plaintiff not having the opportunity to attend the stockholders' meeting of said corporation, he is unable to say exactly how much of said debt claimed by the said Russell is fraudulent, but is informed and believes and so charges that said debt does not exceed the sum of $13,000." The directors of the corporation are F. W. Madden, R. R. Russell, and H. D. Madden. It is charged that H. D. Madden is wholly under the influence of F. W. Madden and R. R. Russell, and is unable, if disposed to do so, to protect the plaintiff's interest. If the aforesaid trustee's sale is consummated, it will be for an inadequate price, because no other than defendants knew, or could know, the value of the property, and the defendants will have a wholly unfair advantage in bidding on the same; that the Cotton Oil & Manufacturing Company will be rendered insolvent by such sale, and plaintiff will be without adequate remedy in law for the protection of his rights. The prayer of the petition is as follows: tiff's petition, and that the defendants be in- who own twenty-five per cent. of its stock, or [1-5] Receiverships are created only as auxiliary to some ultimate relief for which a suit may be instituted. Houston & B. V. Ry. Co. V. Hughes, 182 S. W. 23; Style v. Landtrip, 171 S. W. 786. If it was the purpose of this suit to wind up the affairs of the corporation and terminate its existence, the appellee did "Premises considered, plaintiff prays that a receiver be appointed forthwith to take charge of said property and all assets, books, accounts and documents of said corporation, procure fire insurance on said property, and make a report of his action in the matter forthwith to the court, and hold same subject to the orders of this court; that defendants R. R. Russell and W. G. Boyle be restrained from making such sale, and defendant Cotton Oil & Manufacturing Company, R. R. Russell, W. G. Boyle, and all other officers and agents and attorneys, be enjoined from interfering with the possession of such receiver, his agents and attorneys, in taking possession of such property, assets, books, accounts, and documents of the defendant not allege a status which authorized him to Alto Cotton Oil & Manufacturing Company; maintain such a proceeding; and, had he done that a sale be made of the entire assets and so, the court was without power to appoint good will of defendant Alto Cotton Oil & Manufacturing Company, and a liquidation of its a receiver until ten full days' notice had been affairs be had under proper orders of this court; given to the corporation. But if it can be said for citation; and for such other and further re- that the purpose of the suit is to enjoin perlief as plaintiff may be entitled to in the prem-manently the sale of the corporate property ises." because the debt claimed was partially ficti (218 S.W.) provided in the contract, and limit damages to the difference in cost of shipping from the two places, but may stand on his contract, and recover as though the seller had refused to make any delivery. 5. SALES -418(7) — BUYER MAY NOT BUY price. tious, there was no occasion for appointing a receiver upon an ex parte hearing. It has been repeatedly held in this state that a receiver should not be appointed without notice to the parties adversely interested, unless it should be made to appear that the plaintiff in the suit would suffer some material in- FROM ITSELF ON NONDELIVERY BY SELLER jury by the delay necessary to give notice. AND HOLD SELLER FOR DIFFERENCE IN PRICE, Arnold et al. v. Meyer, 198 S. W. 602. No A buyer cannot, on failure of the seller to such situation is presented by the petition in deliver, buy other goods of itself, trading under this case. Moreover, it appears that the ma-ference between the price paid and the contract another name, and hold the seller for the difterial facts upon which the court must rely in determining that the appointment of a receiver is proper are here alleged upon infor- 6. APPEAL AND ERROR 854(2) — JUDGMENT mation and belief, and are sworn to in the same forın. We think such an affidavit following such averments is insufficient. Ginther v. Zabalgoitio, 170 S. W. 793: Pullen v. Baker, 41 Tex. 420. We are therefore of the opinion that the court should not have appointed a receiver in this case upon an ex parte hearing. We are further of the opin- 7. SALES 418(6) COMMON-LAW REMEDY ion that the temporary restraining order should not have been granted without a hearing, if then. The judgment will therefore be reversed, and judgment here rendered, vacating the appointment of the receiver and the restraining order, and the case remanded to the court below for further appropriate proceedings. DALLAS WASTE MILLS v. EARLY- (Court of Civil Appeals of Texas. Austin. AUTHORIZED BY PLEADING AND EVIDENCE Judgment for plaintiff, though on a wrong theory of measure of damages, will not be reversed; the petition authorizing recovery on the proper the and the evidence showing plaintiff entitled to an amount equal to the judgment. NOT EXCLUDED BY RIGHT GIVEN BY CONTRACT Provision of contract of sale giving purchaser, in case of nondelivery, right to buy other goods in the open market and hold the seller for the difference between the contract price and the price paid, not being mandatory, does not furnish the exclusive remedy, but the buyer may have his common-law remedy of recovering the difference between the contract price and the price at which he could have sold the goods. 1. CONTRACTS 145-MADE WHERE ACCEPT-firmed. BREACH OF CONTRACT MAY BE BROUGHT IN C. M. Smithdeal, of Dallas, for appellant. KEY, C. J. Early-Foster Company, a pri COUNTY WHERE CONTRACT WAS MADE; "PART vate corporation, brought this suit against OF CAUSE OF ACTION." Within Vernon's Sayles' Ann. Civ. St. 1914, art. 1830, subd. 24, authorizing suit against a private corporation in the county in which the cause of action, "or a part thereof arose," the making of a contract constitutes part of the cause of action in suit for its breach. 3. EVIDENCE 457-AMBIGUOUS PROVISIONS OF CONTRACT MAY BE EXPLAINED. Testimony is admissible as to the meaning of provisions of a written contract of sale of linters, they being ambiguous, in the sense that their meaning is not clear to one not familiar with the preparation of and dealing in cotton seed mill products. 4. SALES 177-BUYER ENTITLED TO STAND ON PROVISION OF CONTRACT AS TO PLACE OF DELIVERY. The purchaser of goods is not required to accept delivery of them at a place other than Dallas Waste Mills, another private corporation, and recovered a judgment for $1,181.68, for an alleged breach of a contract; and the defendant has appealed. The contract was in writing, and read as follows: "Ft. Worth, Texas, Feb. 29, 1916. "Contract No. 1148. "Early-Foster Co., Waco, Texas, Buyers. "Dallas Waste Mills, Dallas, Texas, Sellers. "Gentlemen: Referring to 'phone conversations and exchange of telegrams to-day between Mr. Foster of the Early-Foster Co., Waco, Texas, and Mr. Glarner of the Dallas Waste Mills, Dallas, Texas, and ourselves: "We beg to confirm having this day sold to Early-Foster Co., Waco, Texas, for account of the Dallas Waste Mills, millrun Linters made from sound cotton seed and free from damage, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes at the price of five dollars eighty-two and one- [ Crushers' Association.' The Texas Cotton Seed half cents ($5.822) per hundred pounds f. o. b. Crushers' Association is an association gotten cars Texas Common Point Mills. "Shipment: Immediate. "Terms: Demand draft with B/L attached. "Routing: Buyers' option. "This contract is made in triplicate, one copy being sent to each buyer and seller and the original retained in our office on file, which has been duly stamped. up by the millmen, brokers, and dealers, where we all get together and formulate and make rules to trade under. It existed in the state of Texas, and is at present in existence with headquarters at Dallas. They had theretofore promulgated certain rules which were the rules we traded under and the rules referred to in this contract. There is another provision in the "This sale is made subject to the Rules of contract which reads: 'We beg to con the Texas Cotton Seed Crushers' Ass'n. "Commission: Twenty-five cents (254) per bale to be paid by the seller, payable at Fort Worth, Texas. "Yours truly, Kyser-Ruble Brokerage Co., "Per [Signed] C. R. Ruble. (As Brokers Only)." "CRR/LH rule of that association reads as follows: having this day sold to Early-Foster Co. for account Dallas Waste Mills, Dallas, Texas, 250 bales clean millrun linters made from sound seed and free from damage, at the price of $5.821⁄2 per hundred pounds f. o. b. cars Texas Common Point Mills.' As to what is meant by the word 'mills,' I will say it is the mill that produces or manufactures linters. The letters The plaintiff, whose place of business was 'f. o. b.' mean free on board railroad cars. in Waco, McLennan county, Tex., accepted "Texas Common Point Mills' is a term that is the terms of the contract at that place, as applied-meaning the same freight rate would apply to Chicago or points that are shipped to they had previously done by telephone. A from Texas points where the same rate applies. rule of the Texas Cotton Seed Crushers' As-As to what is meant by a common point on railsociation prescribes that all trades in cotton roads, I will say that is a point where the seed products may be for either immediate, rate is the same as a number of points or a prompt, or specified dates of shipment, and certain territory-in groups you might call it. that the word "immediate," as therein used, Texas common point rates would protect within means within five working days. Another the radius of Waco north, Temple north to say 150 miles. That would be the same rate of freight to New Orleans or Memphis or to Chicago or to Kansas City. I mean the same rate. of freight would apply from any of those points, say to New Orleans, Chicago, Memphis, etc. Those calculations are commonly known in the railroad world and the business world. Waco in McLennan county at that time was such a common point. When I use the word 'mill,' that means a mill located at one of these common points. We could not force them to deliver f. o. b. a common point where there was no mill. That means a mill located at one of these Texas common points on the railroad. I did not ever actually receive from the Dallas Waste Mills any of the cotton linters under this contract. I did rely on the Dallas Waste Mills to deliver said linters within the five days provided in the contract and under the rules. We did go into the market and buy 250 bales of cotton linters on March 6, 1918. We bought the 250 bales from the Waco Cotton Linters Company and paid therefor 64 cents per pound f. o. b. Texas common mill point. About 27,000 pounds is what we received. You say I have it 27,755; I think that is correct. We had a customer to whom we had sold the linters and expected to deliver them these linters; that is what we bought them for. We bought these linters from the Waco Cotton Linters Company for the purpose of filling our contract." "Should a buyer fail to give shipping instructions for linters or to receive them when shipped in accordance with the terms of the contract, the seller may after 48 hours' notice to the buyer cancel the contract or sell the linters in dispute through a recognized broker for the buyer's account, and any loss sustained will be a valid claim against the buyer. Conversely, a buyer may protect himself in case of nondelivery of linters bought." W. M. Foster, who was president and general manager of Early-Foster Company, testified, among other things: "The matter in controversy here is covered by a written contract dated February 29, 1916, covered a purchase by Early-Foster Company of 250 bales of linters from the Dallas Waste Mills. I handled this transaction for EarlyFoster Company. As to what is meant in the contract by 'demand draft with B/L attached,' I will say there was to be a draft drawn on demand payable upon presentation, not at sight, but a demand draft with bill of lading attached sent to Waco, and we were to pay it on presentation. It was a cash item. The draft was to be paid in Waco, in McLennan county. As to what is a 'bill of lading,' will say we had a shipment of 250 bales of linters. They secured a bill of lading from the railroad company for 250 bales of linters, attached the same to the draft and forwarded same to Waco to be paid. They would obtain that bill of lading from the railroad company whenever they had the linters loaded in the cars, and the agent then signed it. The Dallas Waste Mills would draw the draft. By 'draft' I mean an ordinary customers' draft drawn through the banks. The draft would reach Waco through the banks in the ordinary course of bank collection. The contract has this language in it: "This sale is made subject to the rules of the Texas Cotton Seed (218 S.W.) plaintiff declined to accept the linters at Gal- f question referred to, we make the following veston, refused to pay the draft referred to, extended quotation from it: and in due time notified the defendant that it would buy in other linters and hold the defendant responsible for the difference in market price. Mr. Foster testified that the course referred to was pursued; that he placed the matter in the hands of Kyser-Ruble Company, brokers; and that they purchased for the plaintiff 250 bales of linters, at the prevailing market price, which was 64 cents per pound. He also stated that the brokers bought the linters referred to from the Waco Cotton Linters Company, which was owned by the plaintiff, Early-Foster Company. In other words, he stated that the plaintiff did business under two names, one being EarlyFoster Company, and the other being the Waco Cotton Linters Company, and he admitted, on cross-examination, that they bought the linters from themselves. The trial was without a jury, and no conclusions of law and facts were filed. "The Act of March 20, 1848, ‘organizing justices' courts, and defining their powers and jurisdictions' (Pasch. Dig. p. 285), provided that no person shall be sued before any justice of the peace, except in the precinct of his residence, or in the precinct where the cause of action accrued, if in the same county (Pasch. Dig. art. 1188). No corresponding provision is made in the 'Act to regulate proceedings in the district court,' of 1846 (Pasch. Dig. p. 346, art. 1423). In 1874 an act was passed to fix the venue in certain cases,' which provided substantially that public or private corporations, created by the laws of this or any other state, may be sued in any court in this state, having jurisdiction of the subject-matter, in any county where the cause of action, or a part thereof, accrued.' 1198, of the Revised Statutes, adopted in 1879, Gen. Laws 1874, p. 31. Subdivision 21, art. provided that suits against a private corporation, etc., might be commenced in any county in which the cause of action, or a part thereof, arose, etc. Such is the law as it now stands. The jurisdiction in this case rests upon the fact whether the cause of action, or a part thereof, arose' in Howard county, Tex. The cause of action is that in which the plaintiff's remedy has its origin, the fact or facts giving him the right to bring the suit. In cases like the present-a suit for damages growing out of the alleged breach of a contract-the cause of a the defendant towards the plaintiff by reason isting in the plaintiff, and some duty resting on of that right, which duty the defendant has failed to perform, or has negligently performed. The facts showing the defendant's failure to perform this duty constitute what we term the breach of the contract, and are no more part of the cause of action than those facts which entitle the plaintiff to its performance. In other words, those facts which show the plaintiff's primary right in the matter are as much a part of the cause of action, and are as necessary as a foundation for the suit, as are those facts showing a violation or invasion of his right, ordinarily termed a breach of the contract or covenant by the defendant. Every cause of action, it is said by Mr. Pomeroy, consists, when subjected to analysis, of two separate and distinct elements, the primary right and duty of the parties respectively, and the wrongful act or omission violating it. Our statute (section 21, art. 1198) seems to recognize the fact that the cause of action consists of two distinct elements, as it provides that the jurisdiction of the court shall attach where 'a part thereof arose.' [1, 2] The defendant filed a plea of privilege to be sued in Dallas county, and the first assignment of error complains of the action of the trial court in overruling that plea. Subdivision 24 of article 1830, Vernon's Sayles' Texas Civil Statutes, prescribes that suits against any private corporation, association, or joint-stock company may be main-action must be predicated on some right extained in the county in which the cause of action, or a part thereof, arose, etc. The original contract in this case was made by telephone. The defendant, through its agent, the brokers, made an offer to the plaintiff at its place of business, in Waco, McLennan county, and the plaintiff accepted that offer at that place; and the same may be said in reference to the written contract. A contract is made where the acceptance of an offer is given. Ins. Co. v. Harris, 94 Tex. 25, 57 S. W. 635, 86 Am. St. Rep. 813; Cuero Cotton Oil Mfg. Co. v. Feeders' Supply Co., 203 S. W. 79, and authorities there cited. So it follows that the contract involved in this case was made in McLennan county, where the suit was brought. But it does not follow that this conferred jurisdiction upon the courts of McLennan county, unless it be that the making of the contract constituted, in part, the cause of action sued upon. The plaintiff sued for a breach of that contract, and, if the making of the contract constituted part of the plaintiff's cause of action, then the cause of action arose, in part, in the county where the suit was brought. That precise question was presented to and decided by our Supreme Court, in Western Wool Com. Co. v. Hart, 20 S. W. 131. The opinion in that case was written by Judge Hobby, of the Commission of Appeals, and was adopted by the Supreme Court; and as it seems never to have been officially reported, and as it contains an illuminative and satisfactory discussion of the tions between appellant's agent and appellee in "The proof certainly shows that the transacHoward county, with reference to the shipment of the wool to appellant at St. Louis, formed a part of the cause of action (without these facts, which the proof disclosed, plaintiff showed no right of recovery); and it is difficult to understand the meaning of the language giving jurisdiction 'where a part thereof arose' if it present. This language last quoted was not in the law prior to 1874. It was incorporated in the law in 1874, the language being 'where the cause of action, or a part thereof, accrued.' was not intended to embrace a case like the |