Amarillo Commercial Co. v. McGregor Milling & Grain Co.

• Decision Date: 30 April 1913
• Citation: Amarillo Commercial Co. v. McGregor Milling & Grain Co., 156 S.W. 1124 (Tex. App. 1913)
• Parties: AMARILLO COMMERCIAL CO. v. McGREGOR MILLING & GRAIN CO.
• Court: Texas Court of Appeals

156 S.W. 1124

AMARILLO COMMERCIAL CO. v.McGREGOR MILLING & GRAIN CO.

Court of Civil Appeals of Texas. Austin.

April 30, 1913.

Appeal from McLennan County Court; Sam E. Stratton, Special Judge.

Action by the McGregor Milling & Grain Company against the Amarillo Commercial Company.Judgment for plaintiff, and defendant appeals.Affirmed.

Geo. W. Cole and Scott & Ross, of Waco, for appellant.James P. Alexander, of Waco, for appellee.

KEY, C. J.

This case comes from the county court of McLennan county, where appellee brought suit against appellant and two railroad companies, seeking to recover damages on account of a carload of hay ordered by appellee from appellant and transported by the other two defendants.The jury returned a verdict in favor of appellee against appellant, and in favor of the other two defendants, holding that they were not liable.Judgment was rendered accordingly, which judgment appellant seeks to have reversed.

The first assignment of error complains of the action of the trial court in overruling appellant's plea of privilege to be sued in the county of its domicile.We think the plaintiff's petition charged appellant with the commission of a fraud, which was made the basis of appellee's right to recover, and which was committed in McLennan county, and for which reason appellee had the right to sue appellant in that county.Furthermore, appellant presented a cross-action against its codefendants by which it sought to recover from them whatever sum it might be held liable for; and the filing of such cross-action constituted a waiver of the plea of privilege.Barbian v. Gresham, 156 S. W. 365, recently decided by this court, and cases therein cited.

The second assignment undertakes to complain of a certain portion of the court's charge.The charge copied in the statement under that assignment does not correspond with the assignment, but relates to a different subject.The proposition submitted under the assignment is that the measure of damages is the difference between the amount paid by appellee and the reasonable market value of the hay received and disposed of by it.The statement submitted in appellant's brief does not show that any such difference existed, the maker of the brief having contented himself with the statement that plaintiff testified that he disposed of the hay at McGregor, Tex., and a reference to the statement of facts where he so testified.That statement does not show that the hay had any value when...