25 S.W. 330 | Tex. App. | 1894
Appellant, a corporation, brought this suit against one Owen J. Cooke, whose residence was alleged to be unknown, and who is insolvent, and against S.B. Hopkins, P.J. Butler, John P. Davidson, and Hugh Blakeney, as residents of Dallas County, Texas.
The four defendants last named pleaded their privilege to be sued in Dallas County, and the court sustained this plea. The correctness of this action constitutes the only question for our consideration.
The plaintiff's petition alleges, that on June 9, 1888, appellant made a contract with Owen J. Cooke, wherein it was provided that said Cooke should construct for it a certain building, particularly described, and at Fort Worth, Texas. The terms of this contract it is unnecessary to state. The defendant Cooke, as principal, with the remaining defendants as sureties, entered into a bond, whereby they obligated themselves to and with the appellant that Cooke would construct the building according to the terms of the contract. This bond contained the following stipulation: "And said principal and sureties further obligate themselves to pay any and all attorney fees, charges, or expenses which the said Board of Trade may incur by reason of being compelled to sue on this bond, and agree that in case they shall be sued on said bond, said suit may be instituted and maintained in any court in Tarrant County, Texas, having jurisdiction of the amount sued for. Witness our hands this ___ day of June, 1888." Signed by all defendants.
The petition further alleged a breach of the contract, with the particulars thereof, by Cooke, and it declared upon this bond.
We think that the conclusion sustaining the plea of privilege is erroneous. The right to be sued in the county of one's residence is a privilege which can be waived. Bonner v. Hearne,
The judgment is therefore reversed and the cause remanded.
Reversed and remanded.