275 S.W. 264 | Tex. App. | 1925
This is an appeal from an order overruling a plea of privilege. Ganaway instituted this suit in Ellis county, alleging that he had bought a span of mules from appellant in Navarro county, paying him for the mules in Navarro county, but that appellant agreed to deliver the mules, and in fact did deliver the mules, to him in Ellis county; that appellant represented to appellee that the mules were healthy and in sound physical condition, and able to do the character of work for which appellee was buying them. He further alleged that soon after the mules were delivered to him, one of them developed a violent disease, from which it soon died. He sought to recover the purchase price of the mules, and certain other items of damage, which where set forth in his petition. Appellant duly filed his plea of privilege to be sued in Tarrant county, the county of his residence, against which appellee filed his controverting affidavit.
The complete statement of facts in this case is as follows;
"It is agreed by and between the plaintiff and defendant that the following constitutes all *265 of the facts adduced upon the trial and the issues raised upon the plea of privilege filed by the defendant.
"(1) The witness, G. R. Ady, after being duly sworn, testified as follows:
"My name is G. R. Ady. I have lived in Ellis county, Tex., for about 43 years. I was present when Mr. Ganaway, the plaintiff, bought two mules from a Mr. Simmons in Corsicana, Tex. I do not recollect his given name. I heard the conversation and trade, and the mules were to be delivered in Waxahachie, Tex., in good shape."
It cannot be seriously contended that appellee, by this evidence, met the burden imposed upon him by law of overcoming appellant's plea of privilege. It is not shown that appellee had any cause of action against appellant, nor that any false representations were made, nor are any facts shown which, if true, would give rise to a cause of action against appellant in Ellis county. It is therefore our order that the judgment of the trial court be reversed, and this cause remanded, with instructions to transfer it to Tarrant county, the county of appellant's residence.