Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-04-11
CIVIL COURT OF APPEALS.


No 13G. A Mclaughlin. appellant. VI. J.
4. shannon and company appellces Ap-
peal ron county court Of Eastland
county
OPINION.
Appellant who resides ia Lamar county.
telegram ana letter. ave cars of wheat Tor
which he was 10 pay r. o. b. nt Ensiland
ls cents per bushel, The shipment " the
wheat was delayed FOR some time nnd
When II reached Paris appellant refused to
receive IL undcr Tie contract claiming it
not 10 De ~ compliance with the sample.
j. ~ NhannQu one ~ the appellces went
TO Paris and after some negotiation with
appellant 1t was agreed thnt the Inter
should take the wheat nc a reduced price.
Appellant received the wheat under this
aifehEement and paid therefor according
70 ms weights, but appellee not being salts
hed with the amount paid instituted this
SUIT IN the county court Of Eastland county
MleHuE fraudulent conversion OF The wheat
~ that county and claiming balance "
SlIO.42 due them FOR the wheat and 500
ns exemplary damages Appellant answered
ul by plea to the jurisdiction Of the
court upon the ground That the amount IA
peilccs b. be more than 500 for the puf-
pose OF comforting jurisdiction upon the
county court q by o plea OF his. privilege
TO he sued IN Lamar county, Il being the
county OF his residence and specifically de
nyiug that the case came within my Of the
exceptions which under the statute would
county; l3 by general denial and special
answer to the merits. No objection was
made IN the court below 20 the order In
which these pleas were fled and after hear
ing the evidence upon the special pleas
above Indicated the cuurt below overruled
them both and uTOn the merits gave judy
ment In favor OF eppollees FOR S136.T4 APP
pellees In their petition seek to deprive ap.
pellant OF his right to be sued IN the county
OF his residence under the seventh excep-
tl2n IN article llps Of the revised statutcs,
aud IN cases Of dofacution OF public OH.
cers, IN which cases suit may be instituted
IN the county IN which the fraud was conf
United. or where the defalcatiou occurred,
or whore the defendant has his domlciL %
We are however, clearly Of opinion that
there j. no evidence ia thls record "a slls.
tain the indlng Of the court that appel.
liant was guilty " fraud such MS X coutrul.
plated 10y thls statute In Eastiand county.
IL IN settled 10y the decisions In this state
that the fraud Intended by this statute
must be shown both by the allegations and
the evidence and u means fraud IN reality
hnd not mere vehement nsscvcrutlons In
pleading In general terms that fraud exist.
ed. Freeman w kehchler, IS Tcxns. 6u2;
BaineS vs. Mensing Bros. and company,
~ Texas, 200 by anpellees own testimony
II appears that appellant was ut no time
in Elstlnnd county IA connection with this
transaction and II any fraud wns pcrpctrat-
cd by him AZ an II must have been In Lamar
county. Under appellcCs own allegations
aud evidence It appears 10 be only an ordi-
nary refusal on the part OF appellant TO
comply with his contract In such case
he has q right 10 Be sued IN the county OF
his residence.
As the case was tried IN the court below
without a Jury and all OF the evidence IL
brought US IN statement or facts we are
OF opinion that the Judgment OF the court
below should be reversed and Judgment
here rendered that appellees take nothing
by this suit; this judgment however, To
be without prejudice TO their right TO hl-
sutute a suit upon the same cause OF ac-
ton IN the county OF appellants residence
should thuy see proper 20 do So
HEAD,
Associate Justice