Eggameyer v. San Antonio MacHine & Supply Co.

McCLENDON, C. J. Appeal from order transferring cause to Bexar county upon plea of privilege. Suit for alleged breach of contract and warranty in sale by defendant, a private corporation, to plaintiff, of “a cottonseed culling machine.” Defendant filed a sworn plea in full compliance with R. S. art. 2007, alleging its residence in Bexar county, denying its residence in Runnels county, and negativing the existence of any exception which would authorize suit other than in county of its residence. Plaintiff controverted this plea by reiterating, as facts, the several allegations in his petition, and asserting that therefore the cause of action or a part thereof arose in Runnels county, thus laying venue in that county, under R. S. art. 1995, § 23. Defendant filed a verified reply to this affidavit, denying generally the allegations therein, except as specifically admitted by it, and then alleged a sale of the machine by written contract, and set up a provision thereof to the effect that exclusive venue of all suits arising thereunder was laid in Bexar county. There is nothing in the record to indicate that there was any evidence introduced upon the hearing. We assume, for present purposes, that plaintiff’s controverting affidavit alleged facts sufficient to lay venue in Runnels county under R. S. art. 1995, § 23; and that the contract stipulation attempting to lay exclusive venue in Bexar county was void under the holding in International Travelers’ Association v. Branum, 109 Tex. 543, 212 S. W. 630, and subsequent cases. We sustain appellee’s counter-proposi-^ tion to the effect that the burden of proof is on the plaintiff to make out at least a prima facie case showing venue in the county of suit, and that the allegations of the controverting affidavit are insufficient when unsupported by evidence. Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896, and numerous holdings by the Courts of Civil Appeals, including Medicine Co. v. Mullens (Tex. Civ. App.) 272 S. W. 516; Bank v. Alexander (Tex. Civ. App.) 274 S. W. 184; gmith v. Daniels (Tex. Civ. App.) 288 S. W. 496. The trial court’s judgment is affirmed. Affirmed.