George Callihan and John J. Russell sued B. U. Sims, Milton Sims, Sam Cavitt, Roy Nunn, and W. H. Lawrence, residents of Brazos county, in the district court of Callahan county to recover judgment upon a written contract for debt and for foreclosure of a statutory lien on an oil and gas lease upon land situated in Callahan county: The contract, dated November 20, 1928, was signed by Joseph B. Weigel, as party of the first part, and John J. Russell and George Callihan, as parties of the second part, and purported to obligate the latter to drill a well to a specified depth upon a 100-acre tract of land upon which the former was recited to be the owner of an oil and gas lease. The well was to be drilled to a specified depth, the consideration for which was an assignment by Weigel to Callihan and Russell of a one-half interest in the lease, with provision that, if the well was dry, Weigel was to pay said contractors $2,500 as “dry hole money.” Provision was made for drilling the well deeper than the specified depth, if subsequently agreed to, in which case the- extra expense was to be borne equally by the parties.
It was alleged that the contract was made with plaintiffs by the defendants, acting through said Weigel as their agent; that the wqll was drilled and was dry, in consequence of which said sum of $2,500 was claimed, together with a small additional amount representing the proportionate part due by the defendants upon the expense of drilling an 'extra depth. It was also alleged that a lien had been duly filed, a foreclosure of which upon the oil and gas lease was prayed for.
The defendants filed a plea of privilege, and plaintiffs filed a controverting plea. The case was then by agreement transferred .to Shackelford county, without mention of the *154plea of privilege. Thereafter by agreement it was retransferred to Taylor county, with the express stipulation that it was to be without prejudice to the plea of privilege. In the district court of the latter county the plea of privilege was tried with the main case and overruled. During the trial plaintiffs filed a trial amendment, asserting that the defendants and said Weigel were partners in drilling the well in question. Upon the merits judgment was for plaintiffs against B. U. Sims, Sam Oavitt, and Roy Nunn for the sum of $2,500; no recovery being awarded against the other defendants. Prom said judgment the first named defendants have appealed.
Appellants contend in the first place that the evidence was insufficient ti> support _ the judgment overruling the plea of privilege. Appellees contend that the transfer of the case from Callahan county to Shackelford county by agreement, without express stipulation that such action was to be without prejudice to said plea, constitutes a waiver of same. .
We have concluded that no waiver was shown. The plea of privilege and the controverting plea were pending at the time the agreement for a transfer was made. The agreement on the part of the defendants was not inconsistent with a purpose further to insist upon that plea. The agreement simply evidenced their consent that the district court of Shackelford county, instead of the district court of Callahan county, should hear first the plea of privilege, and, if overruled, then the case on its merits. It is only when a defendant who has filed a plea of privilege invokes some affirmative action of the court inconsistent with a purpose to insist upon the plea that an implied waiver is shown. Besides, an implied waiver, such as this must be if it exists at all in this case, is rebutted by the stipulation that the retransfer to Taylor county was to be without prejudice. That agreement shows that it was in the minds of the parties that, at that time, the plea had not been waived.
A proper consideration of appellants’ contention that the evidence was insufficient to justify the order overruling the plea of privilege must take into account a legal principle that does not appear to be stressed in the briefs. In Sanger v. Warren, 91 Tex. 472, 44 S. W. 477, 478, 66 Am. St. Rep. 913, the Supreme Court says: “It has long been settled to be a general rule of law that if A. contracts with B. supposing him to he acting in his own hehalf [italics ours], but after-wards discovers that he was acting for O., A. can thereupon elect to hold C. upon the contract. The rule is held applicable to written contracts, and, by a process of reasoning not entirely satisfactory, even to those required by statute to be in writing.” As to this rule the court further says: “The exceptions to the rule, however, are so numerous, broad, and well defined, and rest upon principles of such a fundamental character, that the careful student of the law is driven to the conclusion that they are more important than the rule itself, and that the sfatement of the rule in such broad language has produced much confusion of thought, and greatly embarrassed, and probably has often misled, the courts in their efforts to apply correct legal principles to particular cases.” The court then proceeds to name a number of exceptions, one being “it cannot be applied where exclusive credit is given to the agent.” In the late case of Diacomis v. Wright (Tex. Civ. App.) 20 S.W.(2d) 139, 140, Mr. Justice Looney, after restating the above general rule, further said: “But another rule is applicable where, as in this case, the principal was disclosed at the time the contract was accepted; that is, it will be presumed that the other party elected to look alone to the responsibility of the agent for performance.”
In Heffron v. Pollard, 73 Tex. 100, 11 S. W. 165, 166, 15 Am. St. Rep. 764, the Supreme Court, speaking through Judge Gaines, stated this exception to the rule as follows: “If, however, the principal be disclosed, and the face of the writing shows that the agent is bound, it is presumed that the other party .has elected in the contract itself to look' to the agent, and the principal is not liable upon it.” See, also, Sydnor v. Hurd, 8 Tex. 98; Dominion Oil Co. v. Pou (Tex. Civ. App.) 253 S. W. 317; Waggoner v. Magnolia Petroleum Co. (Tex. Civ. App.) 252 S. W. 865.
The evidence of the plaintiffs themselves in this ease shows that, at the time the contract was made, it was known to them that Weigel had associates. Callihan testified that Weigel was “not alone in this venture, he had associates”; that “he said he had a bunch of associates with him.” Russell testified with more or less repetition that he knew “that Mr. Sims or these other gentlemen from Bryan were associates of Mr. Weigel’sthat, “when we discussed the terms of this contract, Mr. Weigel told me he was drilling this well for himself and associates. Yes, he did name the gentlemen interested with him, named Dr. Sims, Dr. Lawrence, Sam Cavitt and Roy Nunn; he did state that they were the other parties interested besides himself.” And further, “when it came to the signing of the contract he signed it ‘Joseph B. Weigel.’ He taken the contract and said he had conferred with his associates. I did not ask him at the time why he did not put his associates’ names into it. I made the contract with him and I didn’t say anything about his associates’ names, only this: I asked why he signed it himself and he said he was assigning this other half of the lease to these associates”, etc. * * * “Yes, I was relying on Mr. Weigel. He did not sign as agent or trustee. You ask, ‘When you made *155this contract, as a matter of fact, you were relying on Mr. Weigel’, to which I will say, I suppose so.”
The conclusion is inescapable that plaintiffs’ own testimony showed no right 'of recovery against any of the defendants upon the contract sued on. The controverting plea alleged no facts to show that any claim was made against the defendants other than the one upon the contract. The undisputed evidence therefore showed that the defendants were not liable on the cause of action asserted against them, and as to which they claim their privilege.
Venue was sought to be held in Callahan county under the provision of R. S. 1925, art. 1995, subd. 12, which provides an exception to the general rule in the case of “a suit for the foreclosure of a mortgage or other lien,” as to which it is provided that suit may “be brought in the county where' the property or any part thereof subject to such lien is situated.” Plaintiffs’ suit was in'part one to foreclose an alleged lien upon an interest in land situated in Callahan county. There was evidence perhaps to show that much. But it was necessary to show that the land was subject to the lien claimed. The burden of proof was upon the plaintiffs, we think, to offer evidence of sufficient facts to support that conclusion. There were no such faqts in evidence. The facts conclusively established that none of the defendants were liable upon the contract. The only debt claimed in the suit being claimed against the defendants only, it naturally follows that, there being no debt, there was no lien. There beijig no lien, it of course follows that there were no facts to show that the property upon which a foreclosure was sought was subject to the lien alleged.
The fact that by trial amendment liability of the defendants was asserted as partners with Weigel is wholly immaterial in passing upon the plea of privilege. The action of the court on the plea of privilege must be tested with reference to the allegations in the controverting plea which in turn must be referable to and included within the allegations of the plaintiffs’ petition at the time the controverting affidavit was filed. Austin v. Grissom-Robertson Stores (Tex. Civ. App.) 32 S.W.(2d) 205; Gholson v. Thompson (Tex. Civ. App.) 298 S. W. 318; Witting v. Towns (Tex. Civ. App.) 265 S. W. 410.
It is therefore our opinion that the court erred in overruling the plea of privilege, for which reason the judgment of the trial court should be reversed, with Instructions that the ease be transferred to the district court of Brazos county, and it is accordingly so ordered.