This suit was instituted by appellee against C. E. Vandiver, W. A. Fraser, and E. C. Lapham, to recover thirty-two Jersey calves obtained by fraud in Brooks county, or their value in the sum of $14,625. Vandiver pleaded the privilege of being sued in Jim Wells county; Lapham claimed the privilege to be sued in Harris county, as did the firm of Fraser Lapham. Controverting affidavits were filed to each of the pleas. The court heard testimony and sustained the pleas of Lapham and the partnership, and changed the venue to Harris county as to them, but overruled the plea of appellant. Both appellant and appellee appealed to this court.
The evidence was sufficient upon which to base a charge of fraud against Vandiver. The other parties were charged with acting with Vandiver in the fraud, and, while the testimony is not as strong against them as against Vandiver, it was sufficient to connect them with the fraud. They knew that young Lasater was not authorized to sell the calves, except under the conditions made known to Vandiver, but they conferred with the latter and acted with him in buying the cattle. There are two separate transcripts in this case, one filed by Vandiver and one by Lasater. At a former day of this court [29 S.W.2d 428], the judgment changing venue for Fraser Lapham to Harris county was reversed, and the cause remanded to be tried in Brooks county. We adhere to the result in that case.
The judgment is affirmed as to Vandiver, but reversed and remanded as to Fraser Lapham as in the other case. *Page 430