Appellant insists that the court erred, in view of the pleading and evidence, in not sustaining his plea of privilege to be sued in the county of his residence. We think the contention should be sustained. The court rendered judgment on the evidence for the plaintiff against the defendant Williams for the amount of the notes sued upon and foreclosure of the mortgage lien.
This judgment involves the findings of fact by the trial court that there was not, as pleaded by the defendant Williams, either (1) a failure of the consideration for which the notes were given, or (2) a warranty on the part of "the plaintiff and his partner W. F. Lewis," or a warranty on the part of "the plaintiff and the defendant Moon Auto Company and W. B. Coats," or, if made, there was any breach of it, or (3) any damage to the automobile itself inflicted by plaintiff, or "plaintiff and the said W. B. Coats and Moon Auto Company" acting jointly, "while the said car was in the possession of plaintiff in making repairs" at Dallas.
Without such findings of fact the judgment as rendered for the plaintiff could not have been rendered.
For such findings of fact against the defendant legally operated to deny defendant, as claimed by him, (1) a cancellation of the notes for failure of consideration, and (2) an offset against the notes to the amount of money expended in repairing the automobile occasioned by the breach of warranty, and (3) a counterclaim against the plaintiff of damages sustained by ill-use and injury inflicted by him to the automobile "in making repairs" on it.
If, then, as found by the court, there was no warranty, as *Page 963 pleaded, on the part of "the plaintiff and his partner, W. F. Lewis," or "the plaintiff and the defendants Moon Auto Company and W. B. Coats," or, if so, there was no breach thereof, then neither the plaintiff nor the appellant could be held liable therefor, and further, if, as found by the court, the plaintiff himself, or "plaintiff and the said W. B. Coats and Moon Auto Company," acting jointly, did not ill-use or inflict injury to the automobile "in making repairs" on it, then there remained in the pleadings and evidence the only further issue of whether or not appellant himself ill-used and inflicted injury to the automobile "in making repairs" on it.
This was a cause of action, if proven, peculiarly in favor of the defendant against appellant and entirely distinct from the controversy in the main suit, and for which appellant alone could be sued; and he was entitled to have such cause of action, being one in personam, tried in the court of his residence. Article 1830, R.S. Therefore the court, upon arriving at the above findings of fact, should have sustained the plea of privilege as to this cause of action against the appellant.
The answer and cross-action, properly construed, seek to hold appellant liable not only on a warranty, but also for damages occasioned to the automobile while making repairs on it at Dallas. The evidence wholly fails, we think, to make appellant liable on a warranty, even if one had been established, as made by Mr. Berry, because the agent, Berry, did not have authority to bind appellant in a warranty or suretyship on a sale to which the appellant was not a party.
And we think the judgment as rendered by the court against the appellant was based on the conclusion that he was guilty of negligence causing injury to the automobile. The Judgment, so far as it is against appellant, is reversed, and the cause against appellant for damages for negligence is remanded, with instructions to sustain the plea of privilege. The cost of appeal is taxed against the appellee J. D. Williams. The judgment in favor of plaintiff against the defendant J. D. Williams is in all things affirmed.
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