Harper v. FMC Corp.

OPINION WILSON, Justice. In this plea of privilege appeal we hold that plaintiff failed to prove the essential venue fact under Subd. 4, Art. 1995, Vernon’s Ann.Civ.St., that it had a cause of action against the resident defendant. The suit was on a sworn account, as authorized by Rule 185, Texas Rules of Civil Procedure, against an alleged partnership and its partners, two of whom are nonresident appellants. The only evidence to show a cause of action is an affidavit incorporating a number of invoices directed to “Chambers Creek Farms.” A regional manager of plaintiff corporation testified he was familiar with plaintiff’s books and records, that the list of invoices totalled the amount sued for, and they were prepared under his supervision from defendants’ records kept in the regular course of business. It is not contended the invoices were established under the Texas Shopbook rule or business records act, Art. 3737e, V.A.C.S. The affidavit is hearsay, is inadmissible, and even absent objection to its [855] admissibility is not evidence of probative force to establish the alleged debt. McCormick & Ray, Texas Law of Evidence, Sec. 787 ; 24 Tex.Jur.2d, Sec. 573, p. 89. Reversed and remanded.