371 S.W.2d 917 | Tex. App. | 1963
This is a venue case under Section 5, Article 1995, Vernon’s Ann.Civ.Stats. Roger C. Hill sued Mary Lee Davis Chandler, individually and as executrix of the estate of Floyd R. Purvis. Mrs. Chandler’s husband is joined pro forma. Plaintiff, Hill, alleged a written equipment lease contract by a partnership composed of Floyd Purvis and Mary Lee Davis Chandler. Mrs. Chandler filed her plea of privilege and in it denied the partnership under oath. She filed no plea as executrix. Upon the hearing, plaintiff, Hill, introduced the written contract and rested. The order must be reversed, because plaintiff did not overcome the denial of partnership.
Purvis executed the equipment lease contract with Roger C. Hill in these words, “Floyd R. (Pat) Purvis & Mary Lee Davis (feme sole) dba, X-Pert Secretarial Service, Lessee, By Floyd R. Purvis, Partner.” For the issue of partnership to arise on a venue hearing, the defendant must deny partnership under oath in the plea of privilege. Moore v. James, Tex.Civ.App., 242 S.W.2d 958. If this is done, the plaintiff must then connect the one so denying partnership with the partnership obligation. Goldfarb v. Glazer’s Wholesale Drug Co., Tex.Civ.App., 274 S.W.2d 460; Clark, Venue in Civil Actions, p. 45. There was no effort to do this.
Plaintiff Hill’s only contention on this lack of proof of partnership is that it was not specifically denied under oath. Defendant Mary Lee Davis Chandler pleaded under oath: “These defendants deny that X-PERT SECRETARIAL SERVICE CO. was a general partnership between FLOYD R. PURVIS, deceased and MARY LEE CHANDLER on the dates alleged in the Plaintiff’s First Amended Original Petition, * * * and the Defendants deny that they were ever partners with FLOYD R. PURVIS, deceased, doing business as X-PERT SECRETARIAL SERVICE CO.” This was specific enough. 44 Tex. Jur.2d, Partnership, § 115.
The order is reversed and remanded with instructions that the cause against Mary Lee Davis Chandler, joined by her husband, Sidney P. Chandler, be severed and transferred to Nueces County, pursuant to the provisions of Rule 89, T.R.C.P.