
    CANTU et al. v. BRISCOE MOTOR PARTS, Inc.
    No. 9076.
    Court of Civil Appeals of Texas. San Antonio.
    May 17, 1933.
    Rehearing Denied June 14, 1933.
    Oliver C. Aldrich, of Edinburg, for appellants.
    Paul H. Brown, of Harlingen, for appellee.
   ELY, Chief Justice.

This is an appeal from an order overruling a plea of privilege of appellants, A. B. Cantu and G. E. Garcia, to be sued in Hidalgo county. In the plea of privilege the two appellants alleged that they had signed the promissory note, on which the suit was based, but had not delivered the same to appellee, who was the payee in the note.

The note was introduced in evidence, and it was fully proved that it was delivered to appellee by Luis Garza, who signed the note with Cantu and Garcia, who admitted execution of the note, which was payable in Cameron county where the suit was instituted.. The admission of appellants in their plea of privilege is as follows: “That said instrument in writing was signed by these two defendants alone, but was never delivered to any one and such instrument came into the hands of plaintiff herein without the knowledge, consent or authority of these defendants or either of them, and that these defendants have never at any time ratified or confirmed the said instrument.” Garza delivered the note to appellee. He was in business with Cantu and Garcia at time of the delivery. The evidence was ample to show a delivery. There was no plea of non est factum except in so far as the execution of the instrument might be affected by a delivery. The signing was admitted. The facts in this case do not bring it within the purview of the case of Johnson v. Cooperage Company, 120 Tex. 27, 34 S.W.(2d) 845. There was no issue involved in the present case except delivery, and that was proved.

The judgment will be affirmed.  