Bigham v. Talbot & Cropper

Bonner, Associate Justice. The appellant, Samuel W. Bigham, who was a resident citizen of Coryell county, was sued by the appellees, Talbot & Cropper, in the District Court of Comanche county. He demurred to the jurisdiction of that court, because the petition did not state affirmatively such facts as would give it jurisdiction over his person. Although there were some general allegations in the petition which, abstractly considered, would have given .the court-jurisdiction, yet the pleadings, taken as a whole, in connection with the exhibits, made a. part thereof, did not present such a case as, over the objection of the defendant, authorized the court to take jurisdiction over his person, and, in our opinion, there was error in the judgment overruling the demurrer. (Paschal’s Dig., art. 1423.) The defendant also raised by plea in abatement the same question presented by the demurrer. The testimony offered to prove a promise on the part of the defendant to pay the indebtedness sued upon in the county of Comanche was objectionable, under that familiar rule of evidence which requires that all contemporaneous agreements should have been incorporated into the written contract. This objection seems, however, not to have been taken at the time. As presented by the record, this promise was not clearly shown by the testimony, nor does it seem to have been made upon a sufficient consideration, not having been embraced in [454] the terms of the written contract; and, in connection with the action of the court upon the demurrer, we think the record shows such error as requires that the judgment below should be reversed and the cause remanded. Reversed and remanded.