Graves v. McCollum & Lewis

• Decision Date: 20 January 1917
• Docket Number: (No. 8504.)
• Citation: 193 S.W. 217
• Court: Texas Court of Appeals
• Parties: GRAVES v. McCOLLUM & LEWIS.

193 S.W. 217

GRAVES v. McCOLLUM & LEWIS.

(No. 8504.)

Court of Civil Appeals of Texas. Ft. Worth.

January 20, 1917.

Appeal from District Court, Comanche County; J. H. Arnald, Judge.

Action by McCollum & Lewis against Herbert Graves. Judgment for plaintiffs, and defendant appeals. Reversed, and cause transferred to district court of Tarrant county.

Bryan, Stone & Wade and W. C. Blalock, all of Ft. Worth, for appellant. H. N. Goodson, of Comanche, for appellees.

CONNER, C. J.

The material question presented upon this appeal is one of venue. The question arises from the following state of facts as substantially alleged and proven: The appellees, McCollum & Lewis, resident citizens of Comanche county, came to Ft. Worth and purchased from the appellant, Herbert Graves, who is a resident citizen of Tarrant County, Texas, 96 head of cattle, agreeing to give therefor the sum of $2,100. At the time of the purchase and sale referred to, Herbert Graves, or his salesman, falsely represented the cattle to be "safe cattle" and free from disease, and the appellees purchased upon the faith of those representations. It was found by the trial court that the cattle at the time of the sale were affected with Texas fever, from which some 31 of them later died in Comanche county, and for the purchase price of which appellees recovered judgment below. Prior to the sale appellees alleged, and there was evidence tending to so show, that appellant was informed that payment for the cattle would be made by means of a check on a Comanche bank, and that upon completion of the sale, the appellees drew the contemplated check or customer's draft, which was deposited by appellant in a Ft. Worth bank, and later in due course collected from the Comanche bank upon which it had been drawn. The trial court's conclusion on the issue of venue, which had been duly presented by appellant, is in the following language:

"I sustain the venue of this case in Comanche county because the contract for the purchase of the cattle in question was not consummated until the payment of plaintiffs' check, which took place at the office of the Farmers' & Merchants' National Bank in the county of Comanche and because the fraud in question took effect and operated in said Comanche county, Tex., where the money was paid by the bank on behalf of the plaintiffs for said cattle."

While there are some expressions in the case of Landa v. Hunt, 45 S. W. 860, which seem to support the trial court's conclusion, we yet think that he was in error. Our statute (article 1830), so far as necessary to quote, provides that:

"No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases, to wit. * * * 7. In all cases of fraud * * * in which cases suit may be instituted in the county in which the fraud was committed, * * * or where the defendant has his domicile."

It is thus seen that the general rule provided by the statute confers upon an inhabitant of this state the right to be sued in the county of his domicile, and that the right of a plaintiff, when it exists, to sue him elsewhere constitutes an exception to the general rule. The right of the appellees, therefore, to maintain suit in Comanche county being maintainable, if at all, by virtue of the exception above quoted, the burden was upon them under the appellant's allegations to bring themselves clearly within the exception. Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S. W. 25; Cannel Coal Co. v. Luna, 144 S. W. 721; Pecos & N. T. Ry. Co. v. Thompson, 106 Tex. 456, 167 S. W. 801; Durango Land & Timber Co. v. Shaw, 165 S. W. 490.

It is undisputed in the evidence, and the court specifically found, that the statements and representations of the appellant, Graves, and of his agent, regarding the condition of the cattle, and the giving of the check...