Opinion
No. 84.
January 8, 1926.
Appeal from Stephens County Court; John W. Hill, Judge.
Suit by T. Edgar Johnson against John W. Ryan and another. From a judgment overruling defendants' plea of privilege, they appeal. Reversed and remanded, with instructions to transfer.
Arrington Ritchey, of Breckenridge, for appellants.
Chas. H. Clark and Floyd Jones, both of Breckenridge, for appellee.
Appellants answered a suit against them for the value of legal services performed for them by appellee, with a plea of privilege to be sued in Donley County, where they resided. The suit is predicated upon an oral contract, whereby appellee agreed and did perform certain legal services in Stephens county.
The petition attempted to fix the venue in Stephens county by means of certain letters and telegrams of appellants showing that appellee's obligation was to perform the services in the county of the former.
This would not confer venue in such county. It is only the written obligation of appellants promising performance by them in Stephens county that will authorize this suit to be maintained there. Gottlieb v. Dismukes et al. (Tex.Civ.App.) 230 S.W. 792; Allison Sons v. Hamic (Tex.Com.App.) 260 S.W. 1037.
Appellee's controverting affidavit alleged that appellants "obligated themselves in writing to pay plaintiff herein for services rendered by plaintiff in Stephens county, Tex." It is to be doubted whether this can be construed as alleging a written promise to pay appellee in Stephens county, but, assuming that it does, it does not set out such writing, the substance nor the date thereof. The averment is that of a legal conclusion only and insufficient.
Upon the filing of a plea of privilege, it devolves on the plaintiff to file a controverting plea alleging the facts upon which the venue is sought to be sustained. The burden is likewise on the plaintiff to prove the facts so alleged. Ray v. W. W. Kimball Co. (Tex.Civ.App.) 207 S.W. 351.
The only testimony introduced by plaintiff even remotely tending to prove the conclusion above stated is an excerpt from a letter written by appellants September 30, 1924, long after the contract sued on had been made and performed as follows:
"One of us will be down and bring the evidence supporting our statement in this, and we will settle with you at that time."
This is not sufficient to confer venue as sought by appellee. The right to be sued in the county of one's domicile is a valuable one, and not to be frittered away by strained or doubtful inferences. Russell v. Green (Tex.Civ.App.) 214 S.W. 448.
In order to confer venue under subdivision 5, art. 1830, Rev.St. 1911, the obligation to perform in the county where the suit is brought must be plainly present in the writing, and may be stated expressly, as by naming the county, or impliedly, as by naming a place to be found only in that county. Allison Sons v. Hamic (Tex.Com.App.) 260 S.W. 1037, and authorities cited.
The conclusion has been reached that this case does not come within the rule announced in those cases where the contract is negotiated by letters, and the letters show a promise performable in a particular county.
The "contract in writing," to come within the statute, must be such as may be made the basis of the suit. Johnston Const. Co. v. First National Bank (Tex.Civ.App.) 260 S.W. 1091.
The judgment overruling the plea is reversed, and the cause remanded, with instructions to transfer the case to Donley county.