Dowell v. Long

(after stating the facts as above). We need not determine whether it appeared from the allegations in appellee’s pleadings, as the trial court found it did, that appellant had committed actionable fraud in Delta county (Oakes v. Thompson, 58 Tex. Civ. App. 364, 125 S. W. 320), for appellee’s suit was not for fraud committed by appellant. It was, instead, a suit on a contract by the terms of which, he alleged, appellant was indebted to him in the sum of $340. That being the character of the suit, if the contract was not in writing, and it was not pretended that it was, it could not, over appellant’s objection, be maintained in any other county than the one in which he had his domicile. Neal v. Barbee, 185 S. W. 1059, where the court said:

“Where * * * a party elects to sue on his contract rather than for his damages for fraud, * * * he waives the fraud * * * as a fact fixing the venue of his suit.”

The judgment will be reversed, and judgment sustaining appellant’s plea of privilege and directing the clerk of the county court of Delta county to make up a transcript of all the orders made in the cause, certify officially thereto under the seal of said court, and transmit the same, with the original papers in the cause, to the clerk of the county court of Hunt county, will be here rendered.’