Newman v. Buffalo Pitts Co.

FLY, C. J. Appellee sued John Newman, Earl Talley, A. E. Arnold, J. O. McKin [658] ney, O. Vollmeft,' and M. S. Arnold in Harris county on certain promissory notes alleging that they resided in Gray county, Tex.; that the notes were jointly and severally executed by appellant; and that a chattel mortgage on certain property was given by them to secure the payment of the notes. Appellants pleaded their privilege to be sued in Gray county. The court rendered judgment for appellee for the amount of the promissory notes and foreclosed the mortgage lien on the personal property. Appellants admitted in their testimony the execution of the three notes, in each of which notes it was provided that it should be paid in Gray county, but, “if this note is not paid at maturity, then it shall’ become due and payable at the office of the Buffalo Pitts Company at Houston, Harris county, T&x.” The notes were not paid at maturity. The venue was properly laid in Harris county, and the court correctly overruled the plea of privilege. Appellants are in no condition to claim fraud, accident, or mistake, because they filed no pleadings upon which' to base such claim. Their only pleading was their plea of privilege, and they should not have been permitted to introduce any testimony whatever, except in support of that plea. The case of Stacy v. Ross, 27 Tex. 3, 84 Am. Dec. 604, does not sustain the contention of appellants that, under a statutory plea of privilege, fraud in obtaining the execution of the instrument upon which the suit is founded can .be proved. Fraud, accident, or mistake is not mentioned in their plea of privilege. In the case cited there was a distinct allegation that fraud and misrepresentation were used to obtain the execution of the note. Fraud cannot be proved or considered unless it is charged in the pleadings. No case can be produced in which fraud in obtaining the execution of a note was allowed to be shown under a plea of-privilege. The assignments of error raise ho other questions, and they are overruled. The judgment is affirmed.