Opinion by
Hurt, J.§ 778. Venue; suit improperly brought in county other than that of defendant's domicile. Appellant shipped cotton to appellees in Galveston under a contract-by the terms of which appellees agreed to honor the drafts of appellant to the extent of $10 on each bale of cotton shipped, a bill of lading of the cotton to accompany each *428draft drawn, and if, on sale of the cotton, it did not bring as much as $40 per bale, appellant agreed to pay the appellees the deficit. Appellant resided in Rusk county. The cotton when sold brought less than $40 per bale, and the deficit amounted to $112.23, to recover -which this, suit was brought by appellees in Galveston county. Appellant pleaded in abatement that he was a resident of Rusk county, etc. The plea was sworn to, and in other respects sufficient. The plea was disregarded, and judgment rendered against appellant. Held, the court erred in not sustaining the plea in abatement. The appellant was entitled to be sued in the county of his residence, unless it was shown that he had contracted in writing to-pay the money in Galveston county, and no such contract was proved. [R. S. 1198.]
February 19, 1881.Reversed and remanded.
Note.— Judge Winkler did not concur in tlie above opinion.