text:
    HOLMES v. COALSON.
    (No. 8108.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 22, 1915.
    On Motion for Rehearing, July 3, 1915.)
    1. Motions <&wkey;42 — Renewal oe Motion-Res Judicata.
    While the doctrine of res judicata is not strictly applicable to motions and interlocutory orders, and while the court has a discretionary power to allow a renewal of such a motion, that discretion, in the absence of special circumstances constituting an equitable showing for another hearing, will not be exercised after the motion has been determined upon its merits.
    [Ed. Note. — For other cases, see Motions, Cent. Dig. §§ 53, 54; Dec. Dig. <@=342.]

      2. Appeal and Error <&wkey;544 — Reservation of Grounds of Review — Bill of Exceptions — “Record Pkoper.”
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2062, provides that where a ruling appears of record, no bill of exception shall be necessary. Article 1S27 requires the petition to set forth the residences of the parties. Article 1830 provides that, with certain exceptions, no person shall be sued out of the county of his domicile. Article 1903 requires a plea of privilege to be in writing and verified. Articles 1832 and 1833 provide that when such a plea is sustained the suit shall not be dismissed, but shall be transferred to the county of defendant’s residence. Rule 53 '(142 S. W. xxi), for district courts provides that no bills of exception shall be taken to matters which at common law constitute the “record proper,” and rule 55 provides that rulings on applications for change of venue and on other proceedings not embraced in the preceding rules must be presented in a bill of exceptions. Held, that no bill of exceptions is necessary to secure a review of a judgment overruling a plea of privilege, especially as the rules mentioned were in existence long prior to the enactment of articles 1832 and 1833, under which such a plea is claimed to be equivalent to an application for a change of venue (citing Words and Phrases, Record).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. &wkey; 544.]
    ■8. Venue <&wkey;32 — Objections to Venue-Raising by Exception to Petition.
    The privilege to be sued in the county of one’s residence may be invoked by a special exception to the petition where the facts alleged in the petition show the right to claim such privilege.
    [Ed. Note. — Por other cases, see Venue, Cent. Dig. §§ 47-50; Dee. Dig. &wkey;32.]
    4. Appeal and Eeeoe <&wkey;870 — Review—In-TEELOCUTOEY OEDEBS.
    Where an appeal does not lie from an interlocutory order, a party may complain there•of on appeal from the final judgment.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3451, 3487-3489, 3491-3512; Dec. Dig. &wkey;S70.]
    5. Juey &wkey;>16 — Right to Juey — Plea of Peivilege.
    A party has a right to a jury trial upon a plea of privilege.
    [Ed. Note. — Por other cases, see Jury, Cent. Dig. §§ 84-94; Dec. Dig. <&wkey;16.j
    ■6. Venue <&wkey;72 — Plea of Peivilege — Teial.
    A plea of privilege may be heard and determined in connection with a trial of the case upon its merits.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 127; Dec. Dig. <&wkey;72J
    '7. Appeal and Eeeoe <&wkey;556 — Record— Necessity of Statement of If acts.
    A bill of exceptions cannot supply the office of a statement of facts, however full its recital of the facts.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>556.]
    8. Exceptions, Bill of <&wkey;l — Office of Bill.
    The office of a bill of exceptions is to make that a part of the record which otherwise would not be.
    [Ed. Note. — For other cases, see Exceptions, Bill of, Cent. Dig. § 1; Dec. Dig. c&wkey;>l.
    For other definitions, see Words and Phrases, First and Second Series, Bill of Exceptions.]
    9. Coubts &wkey;>85 — Rules of Couet — Liberal CONSTRUCTION.
    Rules of practice are more liberally construed than statutes.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 294, 296-301; Dec. Dig. &wkey;85.]
    10. Venue i&wkey;33 — Change—Authority to Make.
    A court has no authority to change the venue, except when expressly given by law.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 51, 53; Dec. Dig. &wkey;33.]
    11. Venue &wkey;>72 — Plea of Privilege — Burden of Proof.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1830, providing that no inhabitant of the state shall be sued out of the county of his domicile, except in the cases therein specified, and subdivision 7, providing that in cases of fraud suit may be instituted in the county in which the fraud was committed, a plaintiff, suing for fraud in a county other than that of defendant’s residence, on the ground that the fraud was committed there, had the burden of proof, and was bound to overcome a plea of privilege by proof that the fraud was not only committed, but that it was committed in that county.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 127; Dec. Dig. &wkey;»72.]
    12. Fraud &wkey;> 12 — Statements Constituting Actionable Feaud.
    In negotiations for an exchange of land defendant’s agent wrote plaintiff that: “Our party * * * will trade, making you the following guaranty for twelve months * * * twelve houses at $2 per week, $24; twelve houses at $1.50 per week,” etc. Held, that this guaranty was contractual only, and did not amount to a representation that the houses were then renting for the sums specified, and would not furnish a basis for the recovery of damages upon the theory of fraud and deceit.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 14; Dee. Dig. <&wkey;12.]
    13. Fraud <&wkey;9 — Actions—Petition—Sufficiency.
    In an action for fraud on an exchange of property, an allegation that defendant represented to plaintiff that his property was good income property, and that plaintiff was thereby induced to believe that the property was then bringing an aggregate rental of $60 a week, did not show fraud sufficient to support a recovery.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § S; Dec. Dig. <&wkey;9.]
    14. Appeal and Eeeoe <&wkey;719 — Assign-' ments of Eeeoe — Necessity.
    Where, on a plea of privilege in an action for fraud in connection with an exchange of land, the court found that plaintiff was induced to make the trade by a letter from defendant’s agents containing a guaranty that the rents for 12 months would equal specified amounts, and further found that such guaranty amounted to a representation that the property was then being rented for those amounts, its action in sustaining the plea of privilege solely on such guaranty was fundamental error, and defendant was not required to specifically assign error, as the court’s conclusion that the guaranty amounted to a representation was a conclusion of law upon the terms of the letter, construed as the court would construe any written contract.
    [Ed. Nóte. — For other eases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig.' &wkey;719.]

      On Motion for Rehearing.
    16. Appeal and Error <&wkey;G44r — Statement op Pacts — Waiver op Objections.
    Rule 8 (142 S'. W. xi); for Courts of Civil Appeals provides that all motions relating to informalities in the manner of bringing a case into court shall be filed within 30 daysi after the filing ’ of the transcript. Though a transcript was filed several months before a cause was submitted, appellee made no motion to strike out the statement of facts, and made no objection in his brief to the consideration thereof, except to contend that there was “no official statement of facts.” In his reply to certain of the assignments, he referred to the statement of facts in support of his contentions. Held, that the statement of facts would be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2796-2798; Dec. Dig. <i&wkey; 644.]
    16. Appeal and Error <&wkey;768 — Briefs—Admissions.
    An assignment of error, on appeal from an order overruling a plea of privilege, which appeal was dismissed, recited that the petition was admitted as true for the purposes of the plea. On appeal from the final judgment for plaintiff, it was stated in. the statement under certain assignments that, for the purpose of the submission of the plea, it was admitted that the allegations of the petition were true as on general demurrer. The statement of facts showed that no such admission was made on the hearing of the plea, and such admission would have been in direct opposition to several assignments of error addressed to the order overruling the plea. Held that, while the language employed by appellant’s counsel was inapt, it did not amount to an admission that the allegations of venue in the petition were true.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3108; Dec. Dig. <&wkey;>768.]
    17. Appeal and Error <&wkey;931 — Presumptions in Support oe Judgment.
    In an action for fraud brought in a county other than that of defendant’s residence, on the ground that the fraud was committed there, the court on a plea of privilege erroneously found that a guaranty by defendant on an exchange of lands of the amount of the rent of his property for 12 months amounted to a rep-sentation that the property was then rented for the amount specified. There was no evidence that plaintiff was induced by such guaranty to believe that the property was rented for the prices specified. Held that, in the absence of such evidence, it could not be presumed in support of the judgment that the court found that plaintiff was induced to so believe; and hence the findings did not support the judgment, even though a finding was presumed that the letter containing the guaranty was written with the intention of inducing plaintiff to so believe.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3728, 3762-3771; Dee. Dig. <&wkey;931.]
    18. Appeal and Error &wkey;>1176 — Disposition oe Cause — Rendering Judgment Which should have been Rendered.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1626, provides that when a judgment shall be reversed the court shall proceed to render such judgment as the court below should have rendered, except when it is necessary that some facts be ascertained. Held, that where the evidence on a plea of privilege was insufficient as a matter of law to support the order overruling the plea, the plea will be sustained and the case ordered transferred to the proper county, instead of remanding the case for another trial on the plea of privilege.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 4573-4587; Dec. Dig. &wkey;1175.]
    Appeal from District Court, Parker County; P. t». McKinsey, Judge.
    Action by J. B. Coalson against J. V. W. Holmes and others. Prom a judgment for plaintiff, the defendant named appeals.
    Reversed and remanded, with instructions.
    See, also, 154 S. W. 661.
    Beall & Spencer, of Sweetwater, for appellant. R. L. Stennis, of Dallas, J. C. Wilson, of Ft. Worth, and E. H. Grindstaff, of Austin, for appellee.
   DUNKLIN, J.

J. B. Coalson, as plaintiff, recovered a judgment against J. V. W. Holmes, for damages for alleged fraud practiced by the defendant upon the plaintiff in ft certain trade between the parties, in which Coalson conveyed to Holmes a league of land in Taylor county in exchange for four lots of land in the city of Ft. Worth upon which were situated 32 rent houses. From that judgment Holmes has appealed.

H. H. Allen and W. X. Rockwell, composing the partnership of Allen & Rockwell, real estate brokers, who negotiated the trade for Holmes, were also made parties defendant in the suit, but a judgment was rendered in their favor, and of that judgment no complaint is made by Coalson.

The suit was instituted in Parker county where Coalson resided. In plaintiff’s petition it was alleged that all of the defendants resided in Nolan county. In the original petition, filed September 6, 1911, for venue purposes it was alleged that:

“On, to wit, the-day of October, 1910, he [plaintiff] received information from the defendants Allen & Rockwell that the defendant Holmes owned certain improved property in the city of Ft. Worth and that said Holmes would exchange said city property for ranch lands, and the said Allen & Rockwell represented themselves to be the agents of said Holmes for the sale or exchange of said city property; that on the - .day of October, 1910, plaintiff wrote and addressed a letter to said Allen & Rockwell, asking them for a description of said city property and for information as to the amount for which said city property was then being rented. Said letter was sent to said Allen & Rockwell by regular course of mail, and in due time and by due course of mail plaintiff received from said Rockwell the following letter in reply to plaintiff’s said inquiry:
“ ‘Sweetwater, Texas, Nov. 1, 1910.
“ ‘Mr. J. B. Coalson, Garner, Texas — Dear Sir: The following is a more complete description of the Ft. Worth property: 32 3-room rent houses about 2 years old, nicely papered and painted, deep well and windmill, also an electric pump so that water can be pumped when wind is insufficient to run mill, sewerage system, 4 lots each 50 by 140 feet, east of Union Depot. This property fronts on Pacific avenue on opposite side of block from car line.
“ ‘Our party has investigated your land and says will trade making you! the following guaranty for 12 months, you and he each to pay 2% per cent, the usual amount of commission on trades.
12 houses at $2.00 per week.$24 00
12 houses at $1.50 per week. $18 00
8 houses at $1.00 per week. $ 8 00
Total per week.$50 00
“ ‘52 weeks at $50.00 per week amounts to $2600.00 per year the taxes amount to $145.70 per year, insurance $35.90 per year on $7,040.00, making a total yearly expense of $180.00 leaving $2,419.10 net per annum or 8% net on $30.060.00 per annum.
“ ‘Kindly advise us by return mail at what time you will be ready to look at this property and we will arrange to show same to you.
“ ‘Awaiting an early reply, from you, we are, “ ‘Tours truly, Allen & Rockwell.’
“Plaintiff says that by the terms of said letter in reply to the letter of inquiry which he had addressed to said Allen & Rockwell he understood and believed that said city property consisted of the lots therein described, and that the improvement thereon included 32 three-room rent houses about two years old, nicely papered and painted, deep well and windmill, also an electric pump, so that water can be _ pumped when wind is insufficient to run mill, with sewerage system, and that 12 of said houses were each then rented for $2 per week and that another 12 of said houses were each then rented for $1.50 per week, and that the remaining 8 of said houses were each then rented for $1 per week; that said Holmes guaranteed to* plaintiff rents on said houses for a period of 12 months; and plaintiff says that by said letter defendants intended to induce plaintiff to believe that said 32 houses were then renting for said sums per week, aggregating the sum of $30 per week and from said letter, construed by plaintiff in connection with his letter to said Allen & Rockwell, plaintiff was induced to believe and did believe that said houses were renting for said sums per week aggregating said sum of $50 per week, and was induced to believe and did believe that said Holmes thereby guaranteed to plaintiff rents on said houses at said rates per week for a period of 12 months following the conveyance of said property to plaintiff and aggregating the total sum of $2,-600.
“Plaintiff says that said letter was addressed to him at Garner, Tex. (R. P. D. No. 1) which is in said county of Parker, and was received by him' and read by him in said county of Parker.
“Plaintiff says that in response to an invitation by letter from said Allen & Rockwell received by him in said county of Parker, he went to said city of Ft. Worth on the 15th day of November, 1910, and said property and said houses were then and there pointed out to plaintiff by one E. M. McClelland; that in pointing out said houses to plaintiff the said McClelland then and there represented to plaintiff that 12 of said houses were each then renting for $2 per week, and that another 12 of said houses were each renting for $1.50 per week, and that the other 8 were renting for $1.00 per week; and plaintiff says that in showing him said houses and in making said representations to him the said McClelland was acting as the agent of said defendants.
“Plaintiffs says that at said time he was not acquainted with the market value, nor of the reasonable value of said city property, and relied upon its rental income to determine the value of said city property, and plaintiff then had no information as to the rents that had been received from said property, except the information to him through said letter of November 1, 1910, and the representation made to him by said McClelland on said 15th day of November, 1916, and plaintiff then had no information as to the prices at which said houses were then being rented, and no information as to the rental value of said various houses, and no information as to whether said houses were occupied, except as conveyed to him by said letter and by said representations by said McClelland, and plaintiff relied wholly and explicitly upon said letter from said Allen & Rockwell and said representations by McClelland for said information, and believed said houses were then rented, and plaintiff was induced by said letter and the representations contained therein to convey to said Holmes plaintiff’s said ranch lands in exchange for said city property; and plaintiff says that he understood the representations made by said McClelland as aforesaid as being a confirmation of the information given plaintiff by said letter as to the amount of rents then being received on said property as aforesaid.”

Following those allegations were further allegations that the said representations were false; that as a matter of fact 12 of said houses were at that time being rented at $1.50 per week each and 20 at only $1 per week, making a total rental of only $38 per week, $12 per week less in the aggregate than so represented. It was further alleged that plaintiff resided in Parker county 40 miles from the city of Ft. Worth, and did not further see the Ft.'Worth property until after the exchange was consummated on May 12, 1911; that the exchange was consummated in the county of Parker; that on the day of such exchange and before the delivery of the deeds—

“said Holmes and said Rockwell, in. the county of Parker, reaffirmed said guaranty relative to the amount of said rents.”

It was further alleged that the representations in the letter received by him from Allen & Rockwell that the houses were nicely painted and papered, and the representations by McClelland relative to the amount of rents, were false at the time they were made, and also at the time, the exchange of property was consummated; that if it had been true that the property was renting at the prices named in the letter, it would have been reasonably worth on; the market $26,000. Then follow these further allegations:

“Plaintiff says that on the 16th day of November, 1910, said Holmes represented to plaintiff by letter, addressed and delivered to plaintiff in the same manner as said other letter, that said property was good income property, and thereby induced plaintiff to believe that said property was in fact bringing in the revenue which his said agents had represented to be ai fact.
“Plaintiff says that when said exchange of property was consummated on said 12th day of May, 1911, said sewerage connection had been abandoned, and said water system was out of repair and in such damaged condition as to constitute said sewerage connection a nuisance; that said damaged conditions were known to Holmes and his agents, but were concealed from plaintiff, and by reason of said willful concealment plaintiff consummated said trade, believing that the conditions described in said letter still existed.
"Plaintiff says that the market value of said property and its reasonable value on said 15th day of November, 1910, and on said 12th day of May, 1911, did not exceed the sum of $15,000; and plaintiff says that since said 12th day of May, he has had said property and said water system and sewerage system repaired, and has been diligent in his efforts to rent said property, and has not been able to rent any of said houses for more than $1.50 per week, and has not been able to rent but a few of said houses at any time, and has not been able to realize more than $15 per week as rents on said property, all to plaintiff’s damage in the sum of $11,000, for which amount he suies.
“Plaintiff says that in all of said acts and misrepresentations by said Allen & Rockwell the said Allen & Rockwell were acting as agents and in behalf of said Holmes and were acting in collusion with said Holmes to deceive and defraud plaintiff.”

To this petition the defendants Sled a plea of privilege claiming their right to be sued in Nolan county; alleging that county to be the residence of defendants Holmes and Rockwell, further alleging that the residence of Allen was in Irion county, but Allen conceded thS right of plaintiff to maintain the suit in Nolan county. In the plea of privilege it was further alleged that the exchange' of property between the plaintiff and Holmes was the consummation of the contract in writing between them dated November 15, 1910; that said contract embodied all the terms of the trade between them. A copy of the contract was attached to the plea, and is as follows:

“The State of Texas, County of Tarrant.
“This memorandum witnesseth that we, J. V. W. Holmes, party of the first part, of the county of Nolan, state of Texas, and J. B. Coalson, party of the second part of the county of Parker, state of Texas, have this day made and entered into the following contract:
“(1) The party of the first part for and in consideration of $26,508.00, well and truly to be paid to him by the party of the second part, as hereinafter stated, hereby agrees and binds himself to convey to the party of the second part lots Nos. 11, 12, IS, and 14 in block No. 89, Texas & Pacific addition to the city of Fort Worth, Tarrant county, Texas.
“(2) The party of the second part hereby agrees and binds himself in consideration of $26,568.00 well and truly to be paid him by the party of the first part to convey unto the party of the first part four thousand, four hundred and twenty-eight acres of land known as league 143, situated in Taylor county, Texas.
“(3) The consideration to be paid to party of the first part shall be the conveyance to said party of the first part of the land described in section 2 of this contract, and the consideration to be paid the party of the second part shall be the lots and improvements thereon described in section 1 of this contract.
“(4) The lands of each of the parties hereto shall be conveyed by warranty deed, free of incumbrance. Each party shall furnish the other, abstract of title to date, and the party shall have a reasonable time in which to have said abstract examined and consummate this trade.
J. Y. W. Holmes.
“J. B. Coalson.
“Witness E. M. McClelland.”

On April 4, 1912, the plea of privilege was beard by the court and sustained, and the case ordered transferred from the district court of Parker county to the district court of Nolan county. The record before us contains a statement of facts showing the evidence introduced upon that hearing of the plea, and the only evidence introduced consisted of the written contract of exchange between Holmes and Coalson attached to defendants’ plea of privilege, a copy of the letter from Allen & Rockwell set out in the plaintiff’s original petition, and an agreement between the parties that the domicile of the defendants was as shown by the plea of privilege. On April '27, 1912, the trial judge, on motion of the plaintiff, set aside his order sustaining the plea of privilege and upon a further consideration of such plea overruled it, to which action of the court, as shown by the order, the defendants in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District. Upon that hearing the same evidence offered upon the original hearing was again introduced. In addition to that evidence it was further agreed that the letter from Allen & Rockwell to Coalson of date November 1, 1910, was written in reply to a letter from Coalson to Allen & Rockwell, making inquiry as to what the Ft. Worth-property was renting for. It was further agreed that the contract of exchange was signed by plaintiff at Ft. Worth in Tarrant county, Tex., that it was then forwarded to Holmes at Sweetwater in Nolan county, where he signed it and mailed it to plaintiff Coalson at his home in Parker county inclosing with a letter from Holmes to Coalson reading as follows:

“Sweetwater, Texas, 11/16/1910.
“Mr. J. B. Coalson, Garner, Texas — Dear Sir: I inclose contract signed. Where and to whom do you want the abstract sent to. You may send yours here to me and I will have same examined at once.
“You have got some good income property and I am glad to get something near home.
“Yours truly,
J. V. W. Holmes.”

On May 20, 1910, the trial judge filed his findings of fact and conclusions of law upon the hearing of the plea of privilege which are as follows:

“Plaintiff having requested the court to file its conclusions of law and facts had on the trial of defendants’ plea of privilege to be sued in Nolan county, in compliance with said request the court makes the following findings of law and fact.
“I find that in 1910 the plaintiff was the owner of the land described in his petition, which was situated in Taylor county, Tex., and that the defendant J. Y. W. Holmes owned 32 three-room rent houses situated in Ft. Worth, Tex., and also described in plaintiff’s petition; that plaintiff was desirous of exchanging his land situated in Taylor comity for property in Ft. Worth, and that by some means plaintiff and said defendant got in correspondence with each other.
“I find: That on November 1, 1910, the defendants Allen & Rockwell, who were the agents of the defendant Holmes, wrote a letter to plaintiff J. B. Coalson, addressed to him at his home in Parker county, Tex. That said letter was written from, Sweetwater, Nolan county, Tex., where said defendants reside. That in said letter they represented that the defendant I-Iolmes owned 32 three-room rent houses about two years old, nicely papered and painted, deep well and windmill, also an electric pump, so that water can be pumped when wind is insufficient to run mill, sewerage system, four lots; each 50 by 140 feet. In said letter the said parties represented to plaintiff that 12 of said houses were renting at $2 per week, and 12 at $1.50 per week, and 8 at $1 per week, making a total of $50 per week rent. This letter was received by plaintiff at his home in Parker county, Tex. That these representations as to the prices for which said houses were renting were false and untrue. That some of said houses were vacant at the time, and the total sum which the houses that were renting were bringing per week did not exceed $30. That plaintiff re)ied on these representations as to the prices at which said property was renting, and was induced thereby to deed his land to defendant Holmes in exchange for said 32 houses and the lots on which they were situated. ,
“I find that before the trade was finally consummated the plaintiff did go to Ft. Worth and examine the houses; that he was a stranger there, and did not and could not learn the prices at which said houses were renting; that said houses were taken by plaintiff, in exchange for his land, at the price of $26,580, which was approximately the value of plaintiff’s land; that said houses were in reality not worth more than $15,000 or $18,000.
“I find that all parties defendant reside in Nolan County, Tex.”

Holmes prosecuted an appeal from the order of the court overruling his plea of privilege, but that appeal was dismissed by this court for lack of jurisdiction to determine it; appeals from orders on a plea of privilege being allowed by our statutes in the event only the plea is sustained. After the dismissal of such appeal, plaintiff, on March 31, 1913, filed an amended petition, containing substantially the same allegations as contained in the original petition. To that amended petition the defendants again pleaded their privilege to be sued in the county of Nolan, and without waiving said plea they also filed an answer, containing numerous demurrers and exceptions to the plaintiff’s petition, and general and special denials of allegations contained therein. Upon the trial of the merits at which the judgment from which the present appeal has been prosecuted was rendered, the defendants claimed their right to submit to the jury their plea of privilege to be sued in Nolan county, and in support of the plea offered the same testimony as was offered when the original plea was heard before Judge Patterson. The plaintiff objected to such proof upon the ground that the point had been previously heard and determined adversely to the defendants, and the issue was now res adjudi-cata, and in support of that objection introduced the minutes of the court, showing Judge Patterson’s previous order overruling the plea. That objection was sustained by the court, who declined to consider the plea of privilege or to hear testimony in support of the same. A bill of exception was taken to that ruling, and is shown in the record. But the record does not show any bill of exception taken to the previous order of the court overruling the plea of privilege. The action of the court in overruling the plea of privilege at the former hearing has been assigned as error, and error has also been assigned to the refusal of the court to hear evidence in support of the plea when last presented.

The doctrine of res ad judicata is not strictly applicable to motions and interlocutory orders,-but it seems to be pretty well settled that while the court has a discretionary power to allow a renewal of such motion, that discretion, in the absence of special circumstances constituting an equitable showing for another hearing, will not be exercised after the motion has been determined upon its merits. In the present case the second plea of privilege filed by the defendants presented no .new matter nor special circumstance as a basis for an exercise of that discretionary power in the court to retry the plea of privilege. 1 Freeman on Judgments, §§ 325, 326; F. W. & D. C. Ry. Co. v. Harlan (Civ. App.) 62 S. W. 971; Clopton v. Clopton, 10 N. D. 569, 88 N. W. 562, 88 Am. St. Rep. 749.

Appellee Coalson insists that appellant Holmes is in no position to complain of the action of the court in overruling the plea of privilege at the former term of court, since he reserved no bill of exception to that ruling. In support of that contention he cites rules 53, 54, and 55 (142 S. W. xxi), adopted by our Supreme Court to control the procedure in district and county courts; also the decisions of the Court of Civil Appeals in Levy v. Lupton, 156 S. W. 362; Ward v. Odem, 153 S. W. 634, to which might be added several other decisions of like effect, including Campbell v. Cates, 51 S. W. 268; American Warehouse Co. v. Ray, 150 S. W. 763. In each of the decisions noted it was held that a judgment overruling defendant’s plea of privilege will not, upon appeal, be reviewed, in the absence of a bill of exceptions showing such ruling. Those decisions are based upon the conclusion that such a plea amounts only to a motion for a change of venue, and hence comes within the operation of rule 55. The rules referred to read as follows:

“53. There shall be no bills of exception taken to the judgments of the court, rendered upon those matters, which, at common law, constitute the record proper in the case, as the citation, petition, answer, and their supplements and amendments, and motions for a new trial, or in arrest of judgment, and final judgment.
“54. The charges of the court that are given, and those asked that are refused, when signed by the judge and filed by the clerk, being made thereby a part of the record by statute, should not, in civil causes, be made a part of a bill of exceptions.
“55. The rulings of the court upon applications for continuance and for change of venue, and other incidental motions, and upon the admission or rejection of evidence, and upon other proceedings in the case not embraced in the two preceding rules, when sought to be complained of as erroneous, must be presented in a bill of exceptions, signed by the judge and filed by the clerk, or otherwise made according to the statute, and they will thereby become a part of the record of the caúse, and not otherwise.” 142 S. W. xxi.

Article 2062, 2 Vernon’s Sayles’ Tex. Civ. Stat. reads:

“Where the ruling or other action of the court appears otherwise of record, no bill of exception shall be necessary to reserve an exception thereto.”

As it is not within the power of the Supreme Court by rules to override a statute, it is quite apparent that in adopting the rales mentioned, the article of the statute just quoted was construed as referring to “matters which at common law constitute the record proper in the case.”

The question to be considered then, is whether or not the plea in abatement and the order overruling the same constitute a part of the record proper at common law. In Words and Phrases Judicially Defined, vol. 7, pp. 6008, 6009, many definitions are contained of the term “record” at common law as applied to court proceedings, two of which are as follows:

“At common law a record signifies a roll of parchment on which the proceedings and transactions of the court are entered or drawn up by its officers, and which is then deposited in its treasury ‘in perpetuam rei memoriam.’ Hahn v. Kelly, 34 Cal. 391, 422 (94 Am. Dec. 742) — citing 3 Steph. Comm. 583; 3 Bl. Comm. 24. But in the United States paper has universally supplanted parchment as the material for the record. Nugent v. Powell, 4 Wyo. 173, 33 Pac. 23, 25, 20 L. R. A. 199, 62 Am. St. Rep. 17.
“The record of a suit embraces the successive judicial steps which have been taken and are necessary to show jurisdiction and regularity or procedure — the process, writ, or summons, with proof of service; the pleadings, minutes of trial, verdict and judgment; and also ancillary and interlocutory proceedings, entering into and supporting the action. Wilkinson v. Del. R. & W. Ry. Co. (C. C.) 23 Fed. 562, 564 (citing 2 Abbott’s Law Dict. 388).”

The issue of venue necessarily must be presented in the pleadings. By article 1827, 2 Vernon’s Sayles’ Tex Civ. Stat., it is provided that the residence of a defendant, if known, must be alleged in the petition. By article 1830 it is provided that “no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile,” except in certain cases enumerated in that article. It cannot be doubted that the pleadings constitute a part of the record proper at common law, and, such being true, it would follow logically that the action of the court in determining any controverted issue presented by the pleadings likewise would be' a part of such record also. By article 1903 a plea of privilege to be sued in the county of one’s residence is required to be in writing and duly verified.

Furthermore, it is a familiar rule that the privilege to be sued in the county of one’s residence may be invoked by a special exception addressed to the plaintiff’s petition, where the facts alleged in the petition show that he has a right to claim such privilege. Masterson v. Cundiff, 58 Tex. 472; Thomson v. Locke, 66 Tex. 383, 1 S. W. 112; Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S. W. 1114, 121 S. W. 561; Sealey v. Whitfield (Civ. App.) 46 S. W. 865. And, unquestionably, a ruling by the court upon such an exception would constitute a part of the record proper at common law. In Crowell Ind. School District v. First Nat. Bank of Benjamin (Civ. App.) 163 S. W. 339, this court held that the ruling on a plea of privilege would constitute a part of the record proper at common law, and could not be shown by bill of exception.

By articles 1832 and 1833,2 Vernon’s Sayles’ Tex. Oiv. Stat., which were enacted in the year 1907, it is provided that when a plea of privilege to be sued in the county of the residence of the defendant is sustained, the suit shall not be dismissed, but shall be transferred to the county of the residence of the defendant. In Hickman v. Swain (Tex.) 167 S. W. 209, our Supreme Court held that under those -articles of the statutes, an appeal will lie from an order sustaining the plea of privilege, but not from an order overruling such a plea. It was further noted in the opinion in that case that prior to the enactment of those statutes, when a plea of privilege was sustained, the cause would be dismissed, and from such a judgment an appeal would lie.

It is well settled that if an appeal does not lie from an interlocutory order, a party has a right to complain of such when an appeal is prosecuted from the final judgment. Brown v. Thomson (Civ. App.) 31 S. W. 1087. Furthermore, it is a familiar rule that a party has the right to a jury trial upon a plea of privilege (Hudgins & Bro. v. Low, 42 Tex. Civ. App. 556, 94 S. W. 411), and that such a plea may be heard and determined in connection with a trial of the case upon its merits. Caswell v. Hopson, (Civ. App.) 47 S. W. 54. An appeal from a judgment sustaining the plea of privilege, either under the old law or under the present statute, would be governed by the statutes and rules applicable to appeals generally, and we know of no decision or statute which, in that event, would require a bill of exception to the judgment from which the appeal is prosecuted as a prerequisite to the right to prosecute such an appeal. In such a case a statement of facts would be necessary as a basis for complaint that the order of the court was contrary to the verdict, just the same as in an appeal from any other judgment. It is well settled that a bill of exception cannot supply the office of a statement of facts, however full its recital of facts may be. Roundtree v. Galveston, 42 Tex. 612; Cates v. McClure, 27 Tex. Civ. App. 459, 66 S. W. 224. It is also well settled that the office of a bill of excexition is to make that a part of record which otherwise would not be. Farrar v. Bates, 55 Tex. 193; Owens v. Mo. Pac. Ry. Co., 67 Tex. 679, 4 S. W. 593.

If no bill of exception to the judgment sustaining a plea of privilege is necessary in order to prosecute an appeal from that judgment, no reason is perceived why a different rule would apply if, on appeal from a final judgment on the merits, complaint is made of the action of the court in overruling such a plea. Under our decisions rules of • practice are more liberally construed than statutes. Stephens v. Herron, 99 Tex. 63, 87 S. W. 326. Rules 53, 54, and 55 were adopted many years prior to the enactment of the present statutes passed in 1907, requiring a transfer of the case to the proper county in the event a plea of privilege is sustained. We find those rules in volume 47 of the Texas Supreme Court Reports on pages 626, 627, in which volume it appears that the rules were then adopted on December 1, 1877. The same rules were in force to that date, but just how long prior we have not deemed it necessary to investigate. As noted already, under the law in force up to the year 1907 when a plea of privilege was sustained, it was the duty of tlie court to enter final judgment dismissing the cause. Hence it could not be said that under that rSgime a plea of privilege was in any sense an application for change of venue and within the language of rule 85. If such a plea under the former statutes could be termed an application at all, its effect would be an application to dismiss the cause and not for a change of venue. The fact that the rules quoted have not been changed since the enactment of articles 1832 and 1833 in the year 1907 would not necessarily warrant the conclusion that a different construction should be placed upon those rules. Chapter 9, 2 Vernon’s Sayles’ Tex. Civ. Stat. is a special chapter upon the title “Change of Venue,” which has no reference whatever to a plea of privilege, hut provides for a change of venue of a suit upon grounds therein stated, such as local prejudice against the complaining party, and other causes of a similar nature. So far as our investigation has extended, up to the year 1907 that chapter of the statute contained the only statutory provisions for a change of venue of suits in district and county courts, except the provision for transfer of probate proceedings from county to district court (Kahanek v. G., H. & S. A. Ry. Co., 72 Tex. 476, 10 S. W. 570) and the further exception of an old statute long since repealed, requiring a change of venue of a suit when the trial judge was disqualified to try it (Rogers v. Watrous, 8 Tex. 64, 58 Am. Dec. 100); and it has long been the rule that a court has no authority to change the venue except when expressly given by law (Dodson v. Bunton, 81 Tex. 655, 17 S. W. 507). According to our construction of rule 55, applications for a change of venue under the statutes then in force were the ones referred to in rule 55, and that in adopting that rule it was not intended that it should apply to a plea of privilege to be sued in the county of one’s residence. Hilliard Bros. v. Wilson, reported in 76 Tex. 180, 13 S. W. 25, was a suit instituted by Hilliard Bros, in Burleson county against the sheriff of that county, residing therein, and L. & H. Blum, alleged to reside in Galveston county, to recover damages for wrongful seizure and conversion of a stock of goods by virtue of a writ of attachment. It was alleged in plaintiff’s petition that the levy upon and sale of the goods occurred in Burle-son county. Defendants Blum by a plea claimed the statutory privilege of being sued in the county of their residence, alleging in the plea that plaintiff’s allegations of misconduct and fraud on the part of the defendant Wilson in levying the writ and selling the goods, and of confederacy and combination between them and Wilson, were fraudulently made, solely for the purpose of giving the court of Burleson county jurisdiction. In the trial court the plea of privilege was sustained, and upon appeal Hilliard Bros., the plaintiffs, complained of the instruction given to the jury by the trial court that plaintiffs’ cause of action against L. & H. Blum was dependent on their sustaining the charge of misconduct on the part of the defendant Wilson. In discussing that assignment the Supreme Court said:

“The charges complained of made the question of jurisdiction depend solely upon the truth or falsity of the allegations of misconduct and fraud on the part of defendant Wilson in executing the writ of attachment, without regard to whether or not those allegations were made in good faith.
“Appellants contend that the question of jurisdiction is determined by the averments of the petition, and that where the facts alleged give the court jurisdiction, it can be defeated only by a plea to the jurisdiction, and also pleading that the jurisdictional averments were fraudulently made, for the purpose of giving jurisdiction improperly, and a finding that the plea is true. The case of Dwyer v. Bassett, 63 Tex. 276, is relied on in support of the view contended for by appellants. We understand that case to decide that where jurisdiction is dependent upon the amount in controversy, the question is determined by the averments of the petition; for the amount alleged by the plaintiff to be due is the amount in controversy, and if the defendant believes that the averments of the petition as to amount were fraudulently made, then that must be specially pleaded, and the issue thus raised passed upon. The case of Dwyer v. Bassett goes no further than this, and does not decide the question here presented.
“The right to maintain a suit in a county other than that in which the statute fixes the venue must depend upon the existence of the fact or facts which constitute an exception to the statute, and not upon the mere averment of such fact or facts. Where jurisdiction of the person of a defendant is claimed under some exception to the general statute of venue, and he pleads the privilege of being sued in the county of his domicile as provided by that statute, to defeat this plea and deprive him of that right, we think the facts relied on should be not only alleged but proved.”

That decision applies with full force to the present suit. Coalson alleged the residence of Holmes to be in Nolan county, but sought to get jurisdiction of him upon the theory that he had committed a fraud upon Coalson in Parker county and hence the venue was properly in Parker county under exception 7, art. 1830, of the statutes. It cannot be said that Holmes in any manner waived his plea of privilege. He asserted it even upon the trial of the merits, and took a bill of exception to the action of the court in excluding evidence offered in support of it upon that trial. Under the decision last noted it was incumbent upon plaintiff to assume the burden of proof and overcome the plea by proof sustaining the allegation that the fraud alleged against Holmes was not only committed by him or his agents, but committed in Parker county.

It will fee noted that plaintiff’s petition contains the specific allegation that he relied wholly upon the representations contained in the letter and those made by Mc-Clelland for information relative to whether or not said houses were occupied and the prices for which they were rented, and was induced by the representations contained in the letter to convey his ranch lands to Holmes. It will be noted, further, that the date of the letter was November 1, 1910, that the representations by McClelland were made November 15, 1910, in Tarrant county. Furthermore, as shown by his findings, the trial judge who heard and determined the plea found that plaintiff relied upon the representations contained in the letter from Allen & Rockwell, offering to guarantee that the property would rent for the prices therein named for the period of one year, and that plaintiff was induced thereby to deed his land to Holmes in exchange for said Ft. Worth property. The further conclusion fey the judge that said guaranty amounted to a representation that the houses were then renting for those sums was not supported fey the terms of the letter upon which it was feased. The allegation contained in the petition that at the time the deeds of exchange were executed and delivered Holmes and Rockwell in Parker county reaffirmed the guaranty contained in the letter from Allen & Rockwell relative to the amount of rent did not amount to an allegation of fraudulent misrepresentation of fact.

It will fee observed that in another portion of the petition it was alleged that on May 12, 1911, the sewerage connection had been abandoned and the water system was then out of repair, and that plaintiff willfully concealed that condition at the time the exchange of properties was consummated, but these allegations were not the gravamen of plaintiff’s case and were not sustained fey the judge in his findings of fact upon the trial of the plea of privilege. Nor did the court sustain the further allegation contained in the petition that on November 16,1910, Holmes represented to plaintiff, by a letter delivered to him in Parker county, that the property was good income property, and that plaintiff was thereby induced to believe that said property was then bringing an aggregate rental of $50 per week. In no event would the latter allegation constitute fraud sufficient of itself to support a recovery.

The letter from Allen & Rockwell did not purport to state what the Ft. Worth property was then being rented for. It contained the proposition to guarantee that it would rent for the prices therein named during the next succeeding year. The guaranty contained in the letter was contractual only, and a breach of that guaranty would not furnish a basis for the recovery of damages upon the theory of fraud and deceit Bigham v. Bigham, 57 Tex. 238.

Coalson insists, further, that appellant Holmes is in no position to complain of the action of the court in overruling the plea in abatement, since no specific assignment is presented to the findings of fact by the trial judge upon the plea. With this contention we cannot agree. It will be noted in the findings that Coalson was induced to make the trade by reason of the guaranty contained in the letter from Allen & Rockwell that the property would rent for an aggregate of $50 per week for the next succeeding year. As noted already, the further conclusion was that that guaranty amounted to a representation that the property was then being rented for those sums not warranted. In effect, it was a conclusion of law by the court upon the terms of the letter, construed as the court would construe any written contract. Plaintiff in his petition did not rely upon that interpretation, but alleged that the letter was intended to be so construed and was so understood by Coalson. A petition in a suit for damages for fraud and deceit, based solely upon such guaranty as a misrepresentation that the property was then being rented for the sum stated, would have been bad upon general demurrer even though the plaintiff had further alleged that such guaranty amounted to such a statement; and the conclusion of the trial judge in his findings could not be given different effect. Hence the action of the court in sustaining the plea of privilege solely upon the guaranty contained in the letter was fundamental error, and in order for Holmes to complain of it he is not required to specifically assign error to such conclusion by the court. It will be noted that the trial judge failed to sustain the allegations in the petition that the letter was intended to be understood by Coalson as such a representation, and that it was so understood by him, and failed to sustain any other allegation intended for the purpose of showing jurisdiction in Parker county, except that of guaranty; and neither in the court below nor here has any complaint been made fey Coalson of the court’s failure to find upon any of those issues. In other words, Coalson is in the position of being satisfied with the findings made.

In the foregoing discussion we do not wish to be understood as holding that, if Allen & Rockwell by their letter intended to lead Coalson to believe that the property was then renting for the price offered to be guaranteed, and Ooalson so understood the letter and was induced so to believe, those facts, taken in connection with that portion of the letter containing the offer of guaranty, and all the attendant circumstances, would constitute a basis for a recovery by C'oalson of the damages sought. Upon that question we express no opinion, since in the foregoing discussion we have proceeded upon the theory, presented by the plaintiff’s petition, that the same would constitute such cause of action.

For the reasons indicated appellant’s assignment of error, addressed to the order of the court overruling defendant’s plea of privilege to be sued in Nolan county, is sustained, the order overruling the plea of privilege and the final judgment in plain tiff’s favor against appellant Holmes are reversed, the plea of privilege is sustained, and the suit as between Coalson and Holmes is remanded to the trial court, with instructions to transfer the same to the district court of Nolan county in compliance with the requirements of articles 1832 and 1833 of our present statutes. The judgment in favor of Allen & Rockwell, of which no complaint is made upon this appeal, will not be disturbed.

On Motion for Rehearing.

Appellee insists that we erred in considering the statement of facts embodied in the transcript and showing all the evidence introduced upon the trial of appellant’s plea of privilege to be sued in the county of his residence. In his brief submitted on the original hearing, by way of counter propositions to some of appellant’s assignments of error, the contention is made that there is “no official statement of facts” showing the evidence heard upon the plea of privilege; while in his reply to other assignments ap-pellee refers to the statement of facts heard upon that plea and shown in the transcript, in support of his contention that the same .was properly overruled. But appellee made no motion at any time to strike out such statement of facts, and made no objection in his brief to a consideration of the same, other than as stated above, notwithstanding the transcript was filed in this court on August 17, 1914, and the cause was not submitted in this court until May 1, 1915.

In Royal Insurance Co. v. T. & G. Ry. Co., 102 Tex. 306, 116 S. W. 46, our Supreme Court said:

“It appears that the original statement filed in the trial court did not accompany, but was copied into, the record on apneal. No objection was urged to this by appellee, and the causa was submitted to the court for decision upon the record as presented. The law, it is true, required that the original, and not a copy, be sent up; but the difference between the two is so trivial, in comparison with the effect upon the right of appeal of a disregard of the statement, that it should be held that, if an appellee desires to insist upon the original, he should, in some way, make his insistence known before submission, so that the other party may perfect the record by carrying it up, and that when he fails to so do, and allows the cause to be submitted upon the copy, he should be held to have waived the objection, and the copy should be considered as containing the facts upon which the cause is to be decided.”

See, also, rule 8, 142 S. W. xi, which requires all motions relating to informalities in bringing a ease into the Court of Civil Appeals to be filed within 30 days after filing the transcript. Under that decision and rule and the facts stated above, the contention now under discussion is overruled.

The transcript contains the assignments of error which appellant filed on the first appeal from the order overruling his plea of privilege, one of which (fifth) reads:

“The plaintiff’s petition being admitted as true in its averments in the submission of and for the purposes of the pleas of privilege, and same being the only evidence as to the rental value of the Ft. Worth property, the court erred in its findings of fact that said property was renting for not exceeding $30 per week.”

And in the statement appearing in appellant’s brief under his second, third, and fourth assignments of error, all of which complained of the order overruling the plea of privilege, occurs the following:

“For the purpose of the submission of the plea it was admitted that the allegations of the petition were true, as on general demurrer, and the plaintiff introduced the alleged Allen & Rockwell letter of date November 1, 1910 (Tr. pp. 17 and 18).”

Appellee now insists with great earnestness that the assignment and statement copied above should be construed as admissions by appellant that the allegations of venue contained in plaintiff’s petition are true. That he did not make such admissions upon the hearing of the plea of privilege is shown by the statement of facts, which statement was agreed to and signed by counsel for both parties as—

“a true and correct statement of the facts and all the facts adduced in evidence in the matter of the pleas of privilege filed by the defendants in said cause.”

The assignment copied above is not embraced in appellant’s brief on this appeal, but if it could be invoked by appellee for the purpose of estoppel, neither the statements therein contained, nor the statement copied from appellant’s brief, could reasonably be construed as an admission in direct opposition to and destructive of the force of several assignments of error addressed to the order overruling the plea of privilege. While the language employed by appellant’s counsel in both of those instances was perhaps inapt, it is quite clear that it was used in the sense of a demurrer in the nature of a plea of privilege to the sufficiency of the allegations contained in the petition to show a right in plaintiff to sue the defendants in Parker county, when it was further alleged in the petition that they resided in Nolan county.

Appellee insists, further, that in view of the fact that the letter from Allen & Rockwell was in reply to a letter of inquiry from Coalson relative to what the Ft. Worth property was renting for, this court should presume that the trial judge found that Allen & Rockwell, by their letter, intended to lead Coalson to believe that the property was then renting for the prices which they said Holmes was willing to guarantee Coalson would realize as rentals from the property for 12 months. Appellee insists that if such was the intention of Allen & Rockwell in writing that letter, which was addressed to and received by Coalson in Parker county, then the allegation of fraud committed in Parker county was sustained, and the plea of privilege properly overruled. In the case of T. & P. Ry. Co. v. Purcell, 91 Tex. 585, 44 S. W. 1058, cited by appellee, it was held that in the absence of a statement of facts, it must he presumed that every issue of fact made by the pleadings and not determined in the court’s findings filed has been found in a manner to support the judgment, and that in the absence of a statement of facts, exceptions to findings of fact upon issues presented by the pleadings cannot be considered.

But it is also well settled that if there is a statement of facts in the record, a party may, upon appeal, assail, as unsupported by the evidence, any finding of fact by the trial judge, either expressly stated, or which the opposing party contends should be presumed, and that in the absence of evidence to support any such express finding, the same will be given no effect, and that no finding will be presumed for which there is no support in the evidence. In our original opinion we set out substantially all the evidence and admissions adduced upon the hearing of the plea of privilege. It will be noted that Coalson did not testify at all upon that trial, and no evidence was introduced to sustain his allegation that by the letter of Allen & Rockwell he was induced to believe that the Et. Worth property was then being rented for the prices which according to the letter Holmes was willing to guarantee would be realized thereon for 12 months. The court made no such finding, and none can be presumed because of a lack of any evidence to support it. As noted before, there was no finding filed relative to the alleged fraudulent intent of Allen & Rockwell in writing the letter. We seriously doubt whether such a finding would have been warranted, even if that letter be read in the light of Coal-son’s letter of inquiry to which it was a reply, since it clearly avoided a direct answer to the inquiry, and merely offered to guarantee rents for 12 months. It contained no representation of fact, nor even an expression of opinion on the subject covered by the inquiry, and, aside from the contents of the two letters, there was no evidence of any intention on the part of Allen & Rockwell to induce Coalson to believe that the property was then rented for the prices proposed to be guaranteed. 20 Cyc. 14. But even if it should be presumed that the court found, and was warranted in finding, the alleged fraudulent intent on the part of Allen & Rockwell in writing the letter, still there was no proof nor finding of actionable fraud committed at all, since there was no evidence that the fraud intended ever accomplished the desired effect. In other words, there was no proof, upon the hearing of the plea of privilege, that Coalson was ever deceived by the letter into believing that the property was renting for the prices mentioned in the letter, and that by reason of such belief, he was induced to make the trade with Holmes. 20 Cyc. 12, 13. Nor does the statement of facts show any proof that the property was not renting for the prices mentioned in said letter.

No reason is perceived why appellant should be deprived of his valuable statutory right to be sued in the county of his residence, when he is properly asserting that privilege, upon a mere allegation without proof, while upon trial of the merits of his suit the burden is upon plaintiff to sustain by proof all material allegations in his petition.

There is a material distinction between statutes fixing the jurisdiction of courts and those upon the subject of venue. The latter statutes are for the benefit of defendants alone, who can waive the rights therein given, while the question of jurisdiction goes to the authority of the court to determine the controversy.

Appellee complains that at all events the case should have been remanded for another trial upon the plea of privilege, and that we erred in rendering judgment sustaining that plea and directing a transfer of the case to Nolan county. As noted already, we have held that the evidence submitted upon the issues raised by the plea of privilege was insufficient, as a question of law, to support the order overruling the plea. In other words, if the trial of the plea had been before a jury, it would have been the duty of' the court to instruct a verdict sustaining the plea. Having reversed the judgment upon that issue, we proceeded to render judgment here sustaining the plea, in conformity with the provisions of article 1626, Vernon’s Sayles’ Texas Civil Statutes, and the many decisions based upon that statute cited in notes thereunder, including Henne & Meyer v. Moultrie, 97 Tex. 216, 77 S. W. 607; Eastham v. Hunter, 98 Tex. 560, 86 S. W. 323. We still adhere to those conclusions.

In one paragraph of the opinion we referred to the plea of privilege as a plea in abatement. That designation was incorrect, in view of the present statute requiring the suit to be transferred to the proper county in the event the plea of privilege is sustained. But the error in so designating the plea was in no manner material to the views expressed in disposing of the assignments relating thereto.

The motion for rehearing is overruled.
      <Sn^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    ABILENE & S. RY. CO. v. WARD.
    (No. 8214.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 5, 1915.)
    1. Carriers &wkey;137— Carriage or Goods— Injury — Instruction.
    In an action against railroads for injury to a shipment of fruit by freezing in transit, where the main issue was whether such fruit was delivered to the road by the plaintiff’s agent, who instructed defendants’ agent to leave the vents of the car open during transit, the court’s refusal to charge that if the one making the delivery was the agent of the shipper, and gave such directions to leave the vents open, the jury should find for the defendants, was erroneous.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 594, 595; Dec. Dig. &wkey;137.]
    2. PRINCIPAL AND AGENT &wkey;¡54r— DELEGATION by Agent — Duty Involving Discretion.
    Where the circumstances are such that a principal, in trusting his agent with duties involving discretion, and so nondelegable, must have known from the agent’s situation that such duties would have to be delegated to a subagent, such principal is bound by the acts . of such subagent in the exercise of the discretion.
    \jEd. Note. — For other cases, see Principal andl Agent, Cent.Dig. §§ 87-90; Dee.Dig. <&wkey;54.]
    3. Carriers &wkey;>132 — Bill of Lading — Mis-takIsj or Fraud — Burden of Proof.
    I n \an action against defendant railroads for damage to fruit by freezing in transit, where the 'defendants put in evidence a bill of lading, signed'by the agent of the shipper for the purpose of shipping the fruit, whose authority could not i}e denied under the particular circumstances, containing the instruction that car vents should be- kept open to destination, the burden of proof [was on plaintiff shipper to show that such direction was inserted in the bill of lading without the authority of his agent, since in the absence of accident, fraud, or mistake, the bill of lading, as a contract, was binding, the agency for the shipper of the one who signed the bill not' .being open to denial.
    [Ed. Note. — For other 'cases, see Carriers, Cent. Dig. §§ 578-582, 605; Dee. Dig. &wkey; 132.]
    Appeal from Jones County Court; Joe C. Randel, Judge.
    Action by H. A. Ward against the Abilene & Southern Railway Company and others. Judgment for plaintiff, and defendants ¿p-peal.
    Reversed, and cause remanded.
    Chapman & Coombes, of Anson, for appellants. Walter S. Pope, of Anson, for appel-lee.
   BUCK, J.

H. A. Ward, of Anson, Tex., sued the Abilene & Southern Railway Company, the Texas & Pacific Railway Company, the El Paso & Southwestern Company, the El Paso & Southwestern Railway Company of Texas, and the El Paso & Northeastern Railroad Company, for damages in the sum of $550, and for cause of action alleged that plaintiff on December 1, 1913, shipped over the defendants’ lines 600 bushels of apples from Capitan, N. M., to Anson, Tex., through his agent L. T. Ward, and that the latter delivered the apples to the initial carrier, the El Paso & Southwestern Company, lessor of the El Paso & Southwestern Railroad Company and the El Paso & Northeastern Railroad Company, and that by its written contract said lessor company agreed to deliver said shipment to plaintiff safely and securely at Anson by the lines of the connecting carriers mentioned, but that said defendants negligently permitted the apples to be exposed to severe weather and freeze while en-route, and negligently permitted the vents in said car to be left open, and that all of said apples, with the exception of about 100 bushels, were frozen and rendered worthless. That if said apples had been delivered in a sound condition they would have been worth at Anson $1 a bushel.

Defendants, after general and special denial, specially pleaded that the apples were at the time of the shipment in a badly damaged and specked condition, due to having been subjected to a severe hailstorm while in an immature condition and yet on the tree, and that they were rotten at the time of the shipment, and that they were hauled some 23 miles to Capitan in wagons, and roughly handled by plaintiff’s agents, and loaded into the wagons and unloaded therefrom into the cars by means of scoops, and were thereby cut and bruised, and were not, therefore, in a sound, marketable condition at the time of the delivery to defendants. They further denied that they negligently permitted said apples to be exposed to severe weather, or permitted them to become frozen, but averred that, considering the condition of the apples at the time they were received by defendants, they were delivered to plaintiff at An-son in as good condition as the nature of such perishable articles would permit. They further pleaded that, if said apples were in fact frozen while en route, and the said vents in the car were left open, it was not through the negligence of defendants, but by reason of the instruction and directions of one P. G. Hale, the agent of plaintiff, who delivered said apples to defendants.

Plaintiff, in supplemental petition, after ¡special exception and special denials of various allegations in defendants’ answer, specially denied that the vents in said car were left open' under the instructions of P. G. Hale, as agent of and acting for plaintiff, and specially denied the authority of said Piale to bind [plaintiff by any such instructions, and that,'even if said Hale did so instruct the agent of defendants at Capitan to leave the vents of the car open to destination, he'Was not authorized by plaintiff so to do. Plaintiffi- .further alleged that each of said defendants tirell knbw of the cold weather usual and cusfenharg at that time of year, and that, in fact, wifile the shipment was en route a “blizzard came’up\ .and the temperature greatly fell to an unprecedented degree, but notwithstanding this fall in'temperature, the defendants and each of them-negligently let said car vents remain open, thereby subjecting said apples to the severe weather.”

Defendants, in supplemental answer, alleged that plaintiff had held out the said Hale as his agent in the transaction with defendants, and was thereby estopped from denying Ms authority and agency in the respects theretofore plead.

The cause was tried before the court and jury, and from a verdict and judgment for plaintiff in the sum of $200 against the defendants, jointly and severally, the defendants have appealed.

In their fourth assignment, appellants complain of the refusal of the court to give the following requested instruction:

“If you find from the evidence that P. G. Hale loaded the apples in question on the ear of the initial carrier at Capitan, N. M., for the shipper, L. T. Ward, and signed the bill of lading for the shipment of said apples for the said L. T. Ward, and instructed the agent of the defendants at Oapitan, N. M., to open and leave open the vents of said car, and that the -apples in question froze in transit by reason of said vents being left open, you will find for the defendants.”

The fifth assignment is directed to the failure of the court to give the following special charge requested by defendants:

“You are instructed by the court that if you find from the evidence that P. G. líale was the agent of the shipper, L. T. Ward, and that when he signed the contract or bill of lading in question, if he did so, he directed the agent of the defendants, to open and leave open the vents in the car to point of destination, and that the apples were frozen by reason of said vents being left open, you will find for the defendants.”

Plaintiff did not complain of any negligence on the part of defendants, except the leaving open of these vents. He testified that the run from Capitan to Anson was made in exceptionally good time. Defendants pleaded that the vents were left open under the instructions of Hale, and introduced the written contract or bill of lading, upon which plaintiff had declared his action, which hill of lading was signed by C. C. Belknap, agent of the El Paso & Southwestern Company, and by “L. T. Ward, shipper, per P. G. Hale.” H T. Ward testified: ‘Pete G. Hale signed up the contract for me with the railroad.” In this bill of lading/'inserted in writing, and above the signature of Hale and Belknap, is the plain instruction, “Keep vents open to destination.” -' It is true that Hale testified that he did not give any such instructions to the agent of defendants, but that he “left it to the agent to close or, open the vents,” yet certainly it was an issue raised by the pleadings and avidenc.«'(i) whether Hale was the agent of t thp snipper for the purpose of making the '¿Qihtract of shipment, and (2) whether did give such instructions to the agpuit ef the initial carrier. Bel-knap, 'testified that Hale did give such interactions, and the written contract upon which the right of recovery is based, and which is signed by both Hale and Belknap, contains the instructions.

The court nowhere submits to the jury the most vital questions in the case, to wit, the question of Hale’s agency and the question of whether or not he gave such instructions to the agent of defendants. We think the failure of the court to give at least one of these requested charges, preferably the last mentioned, is reversible error. Hale was selected by L. T. Ward, the shipper, to haul the apples overland to Capitan, and to load them on the cars because of Hale’s supposed qualifications for such an undertaking. Young Ward was a teacher and his school was in session, and his father (H. A. Ward) must have known that his son could not personally look after the hauling, loading on the cars, and shipment of the apples, and must have anticipated that he would do just what he did do, secure some one, whom he believed to be qualified, to attend to these matters for him. Hale was shown to he experienced in hauling and shipping apples, while young Ward testified that he, himself, had had no such experience. Appellee urges that L. T. Ward was merely the agent of the consignee (his father) and that therefore, he was not authorized to delegate to a subagent a duty involving discretion. In the fir?.t place, it does not appear from the record that the defendants had any notice of who was the owner of the apples, whether †-he shipper or the consignee, but, in any evént, the rule upon which appellee relies is subject to exceptions. If the circumstances connected with the transaction are such that the principal must have reasonably .known that duties involving discretion and ordinarily nondelegable would have to he delegated by his selected agent to a subagent, said principal is bound by the acts of such subagent within the exercise oí sucia discretion. Eastland et al. v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574; Mechem on Agency, vol. 1, § 317.

It is further urged by appellee that, even thpiigh Hale was the agent of L. T. Ward, tlie shipper, and even though he did instruct the railway company’s agent to leave the vents open to destination, that upon the happening of an unprecedented spell of cold weather while the shipment was en route the defendants would be negligent if they permitted said vents to remain open. The evidence is very meager upon which to establish the existence of any unprecedented spell of weather during transit of the shipment.' The nearest approach to it is the testimony of D. T. Ward. He testified that sometime after the apples were loaded at Capitan it turned cold, “it was what we would determine a blizzard here,” but he does not say how soon after the loading the blizzard occurred, nor where the apples were at the time, nor that such a spell as he testified occurred was “unprecedented” at Capitan at that season of the year. No other witness testified to any unusually cold weather for that time of year, though Hale, Belknap, and H. A. Ward testified as to the weather, and that it was cool or cold about the time of the shipment.

In Gillett v. Ry., 68 S. W. 61, cited by both appellee and appellants, it was held by the Court of Civil Appeals for the Third District, quoting from the syllabus:

“That where a shipment of vegetables was made in the month of February, when freezing weather is not unusual, and the consignors directed the carrier to leave open a vent in the car, they could not recover for loss caused by severe, but not unprecedented, cold weather,”

—and that it was not the duty of the carrier under such circumstances to disregard the instructions of the consignor.

In view of another trial, we perhaps should say further, that while we do not feel justified in sustaining appellants’ first or second assignments, which, in different forms, are directed to the alleged error of the court in failing to give a peremptory instruction for the defendants, yet we are of the opinion that, in the present condition of the record, plaintiff’s right of recovery is dependent upon his establishing that the instructions to “keep vents open to destination” were inserted in the bill of lading without the authority of Hale, for the majority, at least, are inclined to the view that in the absence of pleading and proof to establish accident, fraud, or mistake, under the present record, the bill of lading as a contract is binding, for the reason that Hale's agency cannot be successfully denied.

For the reasons mentioned, the judgment of the trial court is hereby, reversed and the cause remanded.
      «&wkey;jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      cSfc=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    WEDGWORTH et ux. v. SMITH.
    (No. 8207.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 29, 1915.
    Rehearing Denied June 26, 1915.)
    1.Appeal and Error <@=»907 — Presumptions —Facts Not Shown by Record.
    In the absence of a statement of facts, it must be presumed on appeal that there was evidence sufficient to support the verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2899, 2911-2915, 2916, 3673, 3674, 3676, 3678; Dec. Dig. &wkey;907.]
    2.Trial &wkey;>352 — Verdict—Sufficiency to Support Judgment.
    In an action against a husband and wife on notes alleged to have been given for the price of land and to foreclose a vendor’s lien, defendants admitted the execution of the notes, but alleged that plaintiff loaned the husband $1,500 under a usurious agreement to repay $3,000, and that to make the transaction appear legal defendants caused property purchased by them to be conveyed to plaintiff, who then conveyed to the wife. Plaintiff by a supplemental petition denied such loan, and alleged that the husband solicited him to join him in the purchase of certain property; that he sent the husband his check for $1,500 to be invested in such property; that the property was conveyed to plaintiff and defendant wife jointly; and that he subsequently sold his interest to the wife, the notes sued on being given in payment. At plaintiff’s request the court submitted the issue whether plaintiff sent the $1,500 to the husband under an agreement to purchase an interest in such property, or whether the agreement was that plaintiff should lend the husband $1,500, and that the husband should repay $3,000. The jury found that the $1,500 was furnished to purchase an interest in the land. Held, that the issue substantially presented the contentions of the parties, and the verdict, when read in the light of the issue, was sufficiently certain to support the judgment for plaintiff.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]
    3. Vendor and Purchaser c&wkey;281 — Vendor’s Lien — Suits to Foreclose — Burden of Proof.
    Defendants, having admitted the execution of the notes which upon their face purported to be vendor’s lien notes, had the burden of proving the defense set up by them.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig. <i&wkey;281.]
    4. Trial <&wkey;351 — Issues — Submission—Necessity oe Requests.
    If there were issues other than that submitted which defendants desired the jury to pass on, they should have requested their submission, and, in the absence of such a request, were in no position to complain of the court’s refusal to submit them.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 829, 834r-839; Dec. Dig. &wkey;351.]
    5. Pleading <&wkey;422 — Necessity of Verification — Waiver.
    The failure to verify a petition' was waived by the defendant where he did not invoke the benefit of the statute requiring the petition to he verified.
    [Ed. Note. — For other eases, see Pleading, Cent. Dig. §§ 1414-1417; Dec. Dig. &wkey;422J
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Action by A. M. Smith against V. K. Wedg-worth and wife. From a judgment for plaintiff,' defendants appeal.
    Affirmed.
    A. B. Curtis, of Ft. Worth, for appellants. Glover O. Johnson, of Ft. Worth, for appel-lee.
   DUNKLIN, J.

A. M. Smith instituted this suit against V. K. Wedgworth and wife, Mrs. Fannie R. Wedgworth, upon three promissory notes dated June 1, 1909, alleged to have been given in part consideration for certain real estate alleged to have been sold by the plaintiff to Mrs. Fannie R. Wedgworth as her separate property. It was further alleged that the notes were executed by V. K. Wedgworth, and that they provided for the payment of interest upon the principal at the rate of 8 per cent, per annum from date, with the usual 10 per cent, attorney’s fees clauses inserted. From a judgment in favor of the plaintiff against defendant V. K. Wedgworth for the sum of $1,941.30, with a foreclosure of the vendor’s lien alleged in plaintiff’s petition against both defendants, the defendants have appealed-.

The principal defense urged to the suit consisted of allegations, substantially, that during the holidays of 1906-07, plaintiff loaned defendant V. K. Wedgworth the sum of $1,500 under a usurious agreement, by the terms of which Wedgworth was to pay the plaintiff the sum of $3,000 on or about June 1, 1907; that the money was loaned for the purpose of purchasing certain real estate, including the property which plaintiff alleges he sold to defendant Mrs. Fannie R. Wedgworth; that a one-half interest in the proceeds of the property so purchased by Wedgworth was pledged as security for the payment of said loan. It was further alleged that when the loan became due Wedgworth was unable to pay the same or to dispose of said property, whereupon by agreement between the parties Wedgworth procured a conveyance of the property to the plaintiff, who then executed a conveyance of the same to Mrs. Fannie R. Wedgworth, and defendant V. K. Wedgworth paid to plaintiff cash the sum of $1,000, and executed the three notes sued on for the principal sum of $500 each; defendants alleging that said transaction was for the purpose of showing legality upon its face, and that at the time plaintiff insisted upon his full demand of $8,000, with interest, which Wedgworth refused to pay, and by agreement thé total demand was finally reduced to $2,500, and the transaction last alleged was upon that basis. Defendants further alleged payments to plaintiff in various sums aggregating $1,374.85. They pleaded that, as the original contract with plaintiff for said loan was usurious, the payments so made should be applied upon the principal, leaving a balance due the plaintiff of the sum of $125.15 only, which sum they tendered in their pleadings. Defendants further alleged that all of the payments so made belonged to the separate estate of Mrs. Fannie R. Wedgworth; that the property so conveyed to her was her separate estate; that the lien claimed by the plaintiff constituted .a cloud upon her title to said property, which they prayed should be removed.

Plaintiff, by supplemental petition, denied that during the holidays of 1906-07 he loaned defendant V. K. Wedgworth the. sum of $1,-500 under the agreement alleged by the defendants, and further denied that the three notes in controversy were executed under such an agreement, as was alleged by the defendants. Plaintiff further pleaded specially that during the holidays of 1906-07, defendant V. K. Wedgworth approached plaintiff at his home in the town of Clarendon, and tried to induce him to join Wedgworth in the purchase of a one-fourth interest in certain lots in the Frisco Heights addition to the city of Ft. Worth, which he represented could be purchased for the sum of $3,000, proposing at the time that plaintiff and said Wedgworth each invest the sum of $1,500, and that the purchase be made for their joint benefit; that plaintiff declined the proposition at first, but further informed Wedgworth that he might consider it later if Wedgworth found the title to the property to be good; that thereafter, on January 9, 1907, Wedgworth submitted to plaintiff a proposition in writing for the joint purchase of said property, advising plaintiff at the time that he had investigated the title and found it to be good. Plaintiff further alleged that thereafter he mailed to Wedgworth his Chech in the sum of $1,500, with the understanding and agreement between him and Wedgworth that the same, together with á like amount to be furnished by Wedgworth, was to be invested in the property as had been theretofore proposed by Wedgworth. It was further alleged that on or about June 15, 1907, he was advised by Wedgworth that some 80 of the lots that had been purchased for their joint benefit he had been unable to sell, and that the same had been apportioned to him and Wedgworth as their interest in the town lots mentioned; that thereafter he was advised by Wedgworth that 84 of the lots had been surrendered by those to whom they had been sold, and that one-fourth of the same had been apportioned to him and Wedg-worth jointly. He further alleged that subsequently, on or about April 18, 1908, the record holders of the said lots executed a conveyance to plaintiff and to the defendant Mrs. Fannie R. Wedgworth, jointly, conveying to them 41 lots in the addition, thus placing a fee-simple title in plaintiff to one-half of said 41 lots; that thereafter, upon request of Y. K. Wedgworth, he sold his one-half interest in said 41 lots to Mrs. Fannie R. Wedg-worth for the sum of $2,000, payable as follows : $500 in cash; and $1,500 evidenced by three promissory notes in the sum of $500 each, executed by defendant V. K. Wedg-worth, which are the notes sued on herein.

Plaintiff further denied specifically that the sum of $3,000 was ever at any time mentioned in the initial negotiations between him and V. K. Wedgworth, and specifically denied that he ever at any time demanded that V. K. Wedgworth repay him the sum of $3,000 or any other amount whatsoever. In other words, plaintiff, in effect, denied all allegations contained in the defendants’ answer relative to a loan, and alleged that the deed to Mrs. Fannie R. Wedgworth, and the notes executed in consideration for it, represented a straightforward sale between the parties just as the deed and notes purported to be.

No statement of facts has been brought up with the record to this court. The trial was before a jury upon special issues, and the following special issue requested by the plaintiff was the only issue submitted to the jury :

“Did the plaintiff, A. M. Smith, send to Y. K. Wedgworth in January, 1907, the $1,500 in pursuance of an agreement and contract between them that said Smith should purchase an interest in said lots in the Frisco Heights addition ; or was the agreement and contract between them that said Smith should lend said $1,500 to said Wedgworth, and that said Wedgworth should pay said Smith in return therefor $3,000 on or about June 1, 1907? The burden of proof is on the defendants to establish that said $1,500 was furnished by said Smith as a loan to said V. K. Wedgworth, .and, if they have not done so by a preponderance of the evidence in this case, you will answer said question above to the effect that said $1,500 was furnished by said Smith to purchase an interest in said Frisco Heights lots.”

To that issue the jury returned the following verdict:

“We, the jury, find that the SI .500 was furnished to purchase an interest in lots in Frisco Heights. J. E. Davis, Foreman.”

By different assignments of error appellants insist that the verdict was not responsive to the issue presented, and was too vague, indefinite, and uncertain to furnish a sufficient basis for the judgment rendered; that the instruction, in fact, presented no material issue.

In connection with these contentions our attention is called to the request in writing to the trial judge filed by the defendants reading:

“Defendants hereby request that you submit said cause to the jui’y on special issues.”

And which said request was marked as follows:

“Granted. R. H. Buck, Judge.”

Many authorities are cited in appellant’s brief announcing the familiar doctrines that the judgment must follow the verdict; that a verdict which is unintelligible will not support a judgment; and that the court cannot look to the evidence in aid of the verdict even though the evidence be undisputed.

In the absence of a statement of facts, it must be presumed there was evidence sufficient to support the verdict returned upon the issues which were really determined by the jury. It will be noted that the contention presented by defendants’ pleadings was that the $1,500 originally advanced by the plaintiff to Wedgworth was advanced as a loan upon an agreement by Wedgworth to pay therefor the sum of $3,-000, while the contention of the plaintiff was that the money was not loaned to Wedgworth at all, but was sent to him to be invested in real estate. If the contention thus presented by the plaintiff was true, then the whole defense of a usurious loan must fall. We are of the opinion that substantially these two contentions were presented in the special issue submitted, and that the verdict of the jury, read in the light of the issue so presented, as must be done, was sufficiently intelligible and certain to support the judgment

The defendants having admitted in their pleadings the execution of the notes which upon their face purported to be vendor’s lien notes for property purchased from the plaintiff, their only escape from the judgment sought in plaintiff’s petition was by sustaining the defenses specifically pleaded and referred to above, and clearly the burden of proof was upon the defendants to establish those defenses. Appellants did not request the submission of any particular special issues; the request quoted above being the only request made to the court relative to the submission of the case to the jury.

We are of the opinion that the issue whether or not the $1,500 advanced by Smith was advanced to Wedgworth as a loan upon an agreement by Wedgworth to repay to Smith the sum of $3,000, or whether or not the sum was furnished to Wedgworth by Smith to be invested in the property which was thereafter deeded to Smith, and then conveyed to Mrs. Fannie R. Wedgworth, was the controlling issue in the case. If there were other collateral issues which the defendants desired the jury to pass upon, they should have requested a submission of the same, and, in the absence of such a request, they are in no position to complain of the refusal of the court to submit them. It must be presumed that evidence was introduced to support the allegations contained in plaintiff’s supplemental petition. The failure of plaintiff to verify that petition was waived by the defendant in the absence of any showing in the record that the benefit of the statute requiring the same to be verified was invoked by them. See T. & P. Ry. Co. v. Tomlinson, 169 S. W. 217. If the defenses referred to already were not sustained, then clearly there was no basis for the plea of reconvention by Mrs. Wedgworth for a cancellation of the vendor’s lien as a cloud upon her title, and the verdict of the jury was a full adjudication of that plea adversely to her.

The judgment is affirmed.

BUCK, J., not sitting.
      <SuwFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes