Sims v. Callihan

PER CURIAM.

The motion for rehearing is overruled, but the majority do not concur in all of the reasons assigned for overruling the motion in the 'opinion by Associate Justice Funderburk. The statement of facts has been read and reread by us, individually and collectively, and we all agree that there is no evidence that Weigel was the agent of appellants in making the drilling contract. Appellees testified to statements made by Weigel, to the effect that appellants were his associates, hut agency cannot be proved by declarations of the alleged agent. The existence of any debt whatever, and therefore of any lien whatever, depends upon evidence of the agency of Weigel to make the contract for appellants, and evidence of the fact that the contract was actually made by him for them. Finding no evidence of agency, or of any intention to bind appellants, there was no basis for the lien or the debt.

We express no opinion on the question of the quantum of proof required to sustain venue, as against a plea of privilege, óf a suit to foreclose a lien fixed by virtue of a written contract executed by the defendants in a foreclosure suit. It is recognized that the question is sometimes perplexing as to the quantum of proof required to sustain venue under the several exceptions. The case here presented is one in which there is no evidence, either of a debt owing by appellants or of a lien on any property owned by them. The ap-pellees therefore failed to meet the burden imposed by law upon them to overcome appellants’ right to a change of venue under their plea of privilege.