(dissenting on rehearing).
When the motion for rehearing in this case was overruled, I entered my dissent from the ruling of the majority of the court, refusing to grant the motion, and in compliance with our statute will herein as briefly as I can present the grounds of my dissent. I agree with my associates that when the petition in a suit against several defendants alleges a joint and several cause of action against each of them, the venue of which is fixed by the statute in the county in which the cause of action arises, a plea of privilege by a nonresident defendant which does not expressly negative the existence of the cause of action alleged against him is subject to a general demurrer, and therefore the plaintiff is not required to offer evidence in support of his controverting affidavit.
I do not believe that the petition in this case can be sustained as alleging a cause of action against the appellant independent of the allegations of his partnership in the business of his codefendants as alleged and described in the petition, and in the transaction between plaintiff and. the alleged partnership out of which plaintiff’s cause of action arose, and that when appellant expressly denied the existence of the partnership he expressly denied the allegations of the petition which would entitle plaintiff to maintain this suit against appellant out of the county of his residence.
In paragraph 1 of the petition it is alleged that the defendants, E. B. Terrell, a resident of Bexar county, E. J. Schaumburg and O. J. Martinson, residents of Harris county, have since January 1, 1930, been doing business in Harris county as partners under the firm name and style of Ervay & Company.
In paragraph 2 it is alleged that plaintiff borrowed several sums of money from the firm of Ervay & Co. and executed her notes therefor; several of which notes were given for usurious interest. The usurious interest so alleged to have been charged plaintiff and paid by her was in the sum of $52, by reason of which it is alleged the defendants became liable to her in the sum of $104 as penalty provided by our statutes. She asks for cancellation of the remaining unpaid principal and interest notes and for recovery of the statutory penalty, less the sum of $50 repaid her by plaintiff. After asking for this recovery, the plaintiff in paragraph .4 of her petition alleges: “That notwithstanding the plaintiff is not indebted to the defendants or either of them in any sum or amount, the defendants have conspired; together and are conspiring together to force this plaintiff to pay additional money to the defendants which she does not owe, and have been claiming and are now claiming that she is indebted to them in the sum of Sixty-three ($63.00) Dollars, and have been and are now dunning her repeatedly for the payment of said sum of money so claimed by the said defendants to be owing by this plaintiff, and are telephoning her every day, and causing her to be telephoned every day at her place of business where she is employed, insisting that she come in to see the defendants and pay them money claimed to be owing to them, and are now attempting to cause her .to lose her position where she is employed by Louis *536Kaminsky & Company if she does not pay them the money demanded of her which she does not owe them, and they are now maliciously, fraudulently, persistently and unremittingly attempting to dun her and harass and persecute her into paying the money so illegally demanded of her by them, and have been so dunning and harassing and persecuting her for the past several weeks until she has become very nervous and intimidated and fearful of the loss of her position, and because of the embarrassment and humiliation caused by the persistent dunning and harassing which the defendants have caused this plaintiff and the persecution which they have so maliciously and fraudulently caused her, she has become sick in body and mind, and very nervous over the same.”
In the succeeding portion of this paragraph of the petition the defendants are several times alleged to have “conspired together” to harass, humiliate, and threaten plaintiff in order to extort from her unconscionable demands made upon her, for which she prays damages against them in the sum of $5,000. I think it clear that no cause of action is' alleged against appellant except such as would arise out of his alleged partnership in the firm of Ervay & Co., and therefore his express denial of such partnership in his plea of privilege was sufficient to require the plaintiff to introduce sufficient evidence to raise the issue of partnership, to retain venue against him in Harris county. It seems to me that to construe the plaintiff’s petition in this case as alleging a conspiracy by the defendants in Harris county to harass and injure plaintiff, independent of their joint and several liability as partners in a partnership transaction, does violence to every rule of construction of written instruments. Webb County v. Board of School Trustees, 95 Tex. 131, 65 S. W. 878.
To so construe the petition would in effect enable a plaintiff, by general allegations of conspiracy against the alleged members of a partnership growing out of a partnership transaction, to prove in support of such allegation that an alleged nonresident member of the partnership, who was not a partner and had no interest in the subject-matter of the suit, did in fact conspire with the members of the partnership to injure the plaintiff as alleged' in this petition. The petition in this case conveyed no information to the appellant that plaintiff intended such charge against him, and evidence would not be admissible under such petition to prove a conspiracy without proof of the alleged partnership.
In these circumstances appellant cannot be deprived of his valuable right to be sued in the county of his residence because of his failure to deny allegations of conspiracy to" injure plaintiff which appellant could not have reasonably understood to be charged against him independent of his alleged partnership in the defendant firm.
I think the motion for rehearing should be granted and plaintiff’s suit against the appellant transferred to Bexar county.