
    LEVENTHAL v. HOLLAMON et al.
    (Court of Civil Appeals of Texas. San Antonio.
    March 25, 1914.)
    1. Sales (§ 52) — Existence of Contract— Sufficiency of Evidence.
    In an action for the price of a car load of watermelons, evidence held sufficient to warrant a finding that the defendant agreed to purchase the melons from the plaintiff’s assignor.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. § 52.]
    2. Sales (§ 340) — Remedies of Seller.
    Where the buyer of a car load of melons refused to accept them upon delivery, the seller could consider them as the property of the buyer, and sue for the price, or could foreclose his vendor’s lien, and sue the seller for the difference, or could treat the property as his own, and sue for damages.
    [Ed. Note. — Por other eases, see Sales, Cent Dig. §§ 927-942; Dec. Dig. § 340.]
    3. Justices of the Peace (§§ 73, 74) — Procedure — Change of Venue — Application.
    A plea of the privilege of the defendant, in an action before a justice of the.peace, to be sued in the county of his residence, which did not show the precinct in the county in which he resided, so that the cause might be transferred to the proper justice court, was insufficient.
    [Ed. Note. — Por other cases, see Justices of the Peace, Cent. Dig. §§ 236-242; Dec. Dig. §§ 73, 74.]
    4. Justices of the Peace (§ 161) — Pkoce-duee — Change of Venue — Waivee.
    A defendant, in an action before a justice of the peace, who filed no plea of privilege until after judgment had been rendered against him, and he had appealed to the county court, waived his right to be tried in the county of his residence.
    [Ed. Note. — Por other'cases, see Justices oi the Peace, Cent. Dig. §§ 592-599, 601, 602, 604; Dec. Dig. § 161.]
    5. Costs (§§ 169, 172) — Allowance of, Attorney's Pees — Peesonal Expenses.
    An allegation that a claim was fraudulently assigned to give jurisdiction over the action, in a county where the defendant did not reside, is not sufficient to authorize an allowance to the defendant of attorney s fees or of expenses in attending the trial.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 652, 653, 657, 658, 663, 665-687, 759; Dec. Dig. §§ 169, 172.]
    6. Depositions (§ 61) — Suepeession — Geounds — Absence of Attoeney.
    A deposition will not be suppressed because counsel for the adverse party was not present at the taking of the deposition, where it does not appear that any harm thereby resulted to such party, and especially if counsel for the other party was not present either.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. § 128; Dec. Dig. § 61.]
    7. Depositions (§ 83) — Suppeession — Geounds — Disobedience to Subpcena.
    The fact that the plaintiff, who was subpoenaed by the defendant, disobeyed the subpoena is not sufficient ground for the suppression of his deposition, where no attachment was requested.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 219-226; Dec. Dig. § 83.]
    Appeal from Guadalupe County Court; J. M. Woods, Judge.
    Action by George B. Hollamon against H. Leventhal and Abe Freeman. From a judgment in the county court, on appeal from a justice of the peace, for the plaintiff against both defendants, and for the defendant Freeman against the defendant Leventhal, the defendant Leventhal appeals.
    Affirmed.
    Jas. A. Harley, of Seguin, for appellant. J. B. Dibrell, of Seguin, for appellees.
    
      
      For other oases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   CARL, J.

George B. Hollamon brought this suit against H. Leventhal and Abe Freeman, claiming $175 on an account for a car load of watermelons shipped by Freeman to appellant,. Leventhal, and the account having been assigned to Hollamon by Freeman, and payment thereof guaranteed. .The suit was originally in the justice’s court, whence it was appealed to the county court of Guadalupe county, and there again judgment was for Hollamon against Freeman for $175, and in favor of Freeman against Leventhal for $127, interest and costs. In the county court Leventhal pleaded his privilege to be sued in Dallas county, where he resides, and alleged collusion and fraud between Freeman and Hollamon for the purpose of conferring jurisdiction on the county court of Guadalupe county. Freeman assumed the burden of the litigation in both the lower courts on behalf of the plaintiff, and made the fight, although Hollamon was nominally the plaintiff, and excepted to Leventhal’s plea in abatement and allegations as to fraud and conT spiracy, which the court sustained.

It is contended that no contract to buy the melons is shown; that the minds did not meet in an agreement. Joe Novich testified that on July 4, 1912, on.his way from the post office in Dallas he went into appellant’s place of business for refreshments, and Leventhal, whom he had previously introduced to appellee Freeman, asked witness to get in communication with Freeman and order a ear of melons to be of the average size, not less than 25 pounds each, for which he agreed to pay $175, f. o. b. Dallas; that on the same day, and soon after such request, witness did get in communication with Freeman and told him of the order, and Freeman accepted. Freeman confirmed the sale by letter to Leventhal the same day. And later Leventhal called up Novich and asked whether the melons had been shipped. There was sufficient evidence upon -which the jury could Dase its finding that there was such a contract.

Freeman shipped the car of -melons to appellant at Dallas, and he examined them, and said they were not sound, as ordered, and refused them; whereupon Freeman sold them for $48 after some days.

If appellant ordered the melons as claimed, and refused to accept them upon arrival, Freeman had the choice of three remedies: (1) He could hold the property as the property of Leventhal, and sue for the price; (2) he could foreclose his vendor’s lien upon the property by a fair sale of it, and sue Leven-‘thal for the difference; (3) or he could treat the property as his own after the vendee’s refusal, and sue for damages. Welden v. Texas Continental Meat Co., 65 Tex. 489; Waples v. Overaker, 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; Avant v. Watson, 57 Tex. Civ. App. 304, 122 S. W. 586; Woldert v. Arledge, 4 Tex. Civ. App. 692, 23 S. W. 1052; Sour Lake Townsite Co. et al. v. Duetser Fur. Co., 39 Tex. Civ. App. 86, 94 S. W. 188.

The plea of privilege was raised for the first time in the county court, on appeal, and the court did not err in sustaining ex> ceptions to it.

When a plea of privilege is filed and relied on as to jurisdiction, the one seeking to avail himself of that plea must give the other party a better writ. He must show exactly where the proper jurisdiction is, so that the venue may be correctly laid. This cause originated in the justice’s court of Guadalupe county, from which it was appealed to the county court. In fact the amount in: volved indicates that the justice’s court has exclusive original jurisdiction, and the county court could only acquire jurisdiction on appeal. The plea of privilege does not show in what justice’s precinct the appellant lives; but he asks that the case be transferred to the Dallas county court from the county court of Guadalupe county after he has neglected to file any plea in the justice’s court. We think it too well settled in Texas that he cannot do this to require us to cite authorities. After appellant failed to file his plea in the justice’s court, he voluntarily appealed to the county court of Guadalupe county, the same court which he now says had no jurisdiction. If he had, in due time, filed his plea of privilege in the justice’s court, and had not waived same, it follows that he could urge the same plea in the county court. But even then, if the county court should find that the plea should have been sustained had it been filed in the justice’s court, the case would go to the proper justice’s court in Dallas county," the name of which appellant has failed to furnish. Therefore his contention cannot be sustained, first, because his plea did not show the court that rightfully had jurisdiction, and, second, because he waived the right 'to sucb plea by not filing same in the justice’s court. Karner v. Ross, 43 Tex. Civ. App. 542, 95 S. W. 46; Hall v. Howell, 56 S. W. 561; Watson v. Baker, 67 Tex. 48, 2 S. W. 375; Floyd v. Gibbs, 34 S. W. 154.

Nor did the court err in sustaining exceptions urged by appellee Freeman to Leven-thal’s claim for attorney’s fees. An allegation that the claim was fraudulently transferred for the purpose of giving jurisdiction to the court where the cause is sued on is not sufficient to enable appellant to recover attorney’s fees. And the same would apply to the items of personal expense in attending the trial sued for in the cross-action. Mutual Life Ins. Co. v. Hargus, 99 S. W. 580; Salado College v. Davis, 47 Tex. 131; Strauss v. Dundon, 27 S. W. 503; Tunstall v. Clifton, 49 S. W. 245.

Appellant contends that the deposition of George B. Hollamon should have been suppressed, because his attorney was not permitted to be-present, and because Hollamon refreshed his memory in giving same from some kind of paper which he had. It is made to appear that this paper merely had some dates on it, etc. It is not shown that any injury resulted from the fact that appellant’s counsel was not present, especially since the other attorneys were not present. In fact it is not shown how any harm was done, or that it would have been different had counsel for appellant been there. The assignments ^raising this matter are overruled.

Complaint is made that the court erred in refusing to suppress Hollamon’s deposition, because appellant had subpoenaed him as a witness, paid him $1, and he refused to attend court. This is not cause for suppressing a deposition. The court, on application would have issued an attachment for Holla-mon, and he would then have come. This was not requested; but, instead, the deposition is sought to be quashed.

We have examined the other assignments, and, finding them without merit, overrule them all.

Judgment affirmed.  