Coons v. Seeliger

254 S.W. 1015

• Court: Court of Appeals of Texas
• Decided: October 10, 1923
• Docket: No. 7001.
• Status: Published

Opinion

FLY, C. J.

Appellant alleged that appel-lee was a resident of Caldwell county, and that he had negligently, in Comal county, run his automobile into and against the automobile of appellant, and had wrecked the same, and that on the next day, in Bexar county, Tex., appellee had promised appellant to pay for whatever repairs were necessary on' the wrecked car, and, relying upon said promise, appellant had expended the sum of $600 in repairs, but appellee refused to pay the same. Appellee filed a' plea of .privilege to be sued in Caldwell county, and the court sustained it, and ordered a transfer of the cause to that county.

Appellant claims the right to sue appellee in Bexar county because appellee had perpetrated a fraud in promising in that county to pay the repairs on the automobile. The allegations make out an action on an oral contract, and not one for damages arising'from fraudulent representations. Mere failure to pay an account, although an express promise was made to pay, would not be sufficient to show such fraud as would deprive a defendant of the valuable right to be sued in his own county. This is a suit on an oral contract for the payment of repairs on an automobile amounting to $600, and no actionable fraud was alleged to have been committed in Bexar county. The suit could not be maintained in any other county than the county of appellee’s residence over his protest. Dow-ell v. Long (Tex._Civ. App.) 219 S. W. 560.

The judgment is affirmed.