Neal v. Ganaway

WALKER, J.

This is an appeal from an order overruling a plea of privilege. Gan-away instituted this suit in Ellis county, alleging that he had bought a sp-an o'f mules from appellant in Navarro county, paying him for the mules in Navarro county, hut that appellant agreed' to deliver the mules, and in. fact did deliver the mules, to him in Ellis county; that appellant represented to appellee th^t the mules were healthy and in sound physical condition, and able to do the character of work for which appellee was buying them. He further alleged that soon after the mules were delivered to him, one of them developed a violent disease, from which it soon died. He sought to recover the purchase price of the mules, and certain other items of damage, which where set forth in his petition. Appellant duly filed his plea of privilege to he sued in Tarrant county, the county of his residence, against which -appellee filed his controverting affidavit.

The complete statement of facts in this case is as follows:

“It is agreed by and between the plaintiff and defendant that the following constitutes ail of the facts adduced upon the trial and the issues raised upon the plea of privilege filed by the defendant.

“ (1) The -witness, G. R. Ady, after being duly sworn, testified as follows:

“My name is G. R. Ady. I have lived in Ellis county, Tex., for about 43 years. I was present when Mr. Ganaway, the plaintiff, bought two mules from a Mr. Simmons in Corsicana, Tex. I do not recollect his given name. I heard the conversation and trade, and the mules were to be- delivered in Waxahachie, Tex., in good shape.”

It cannot be seriously contended that ap-pellee, by this evidence, met the burden imposed upon him by law of overcoming appellant’s plea of privilege. It is not shown that appellee had any cause of action against appellant, nor that any false representations were made, nor are any facts shown which, if true, would give rise to a cause of action against appellant in Ellis county. It is therefore -our order that the judgment of the trial court be reversed, and this cause remanded, with instructions to transfer it to Tarrant county, the county of appellant’s residence.