Radio KBUY, Inc. v. Lieurance, 7453
| Decision Date | 29 March 1965 |
| Docket Number | No. 7453,7453 |
| Citation | 390 S.W.2d 16 |
| Parties | RADIO KBUY, INC., Appellant, v. Della Burk LIEURANCE, Appellee. |
| Court | Texas Court of Appeals |
Lumpkin, Watson, Dunlap & Smith, Amarillo, for appellant.
Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee.
This is a case involving fact situations tried to the court based upon a suit upon an open account filed by Radio KBUY, Inc., for radio advertising furnished Amarillo Furniture Company. The company was at all times material herein a corporation, duly chartered on October 16, 1952. Its president and principal stockholder was Della Burk Lieurance, its secretary was William R. Curtis, and the other director was Ella Burk Rogers, who owned twenty-five per cent interest in the corporation.
Appellant sought personal judgment against Mrs. Lieurance, the corporation apparently being defunct at the time of trial.
After the evidence was completed the court rendered judgment for Radio KBUY against Amarillo Furniture Company for $650.00, the amount of the account, for attorney's fees in the sum of $300.00, and for interest on the entire amount at the rate of six per cent per annum from date of judgment until paid, plus all costs of court.
As against appellant's effort to take a judgment against Mrs. Lieurance personally, a take-nothing judgment was rendered. It is from such judgment appeal is perfected to this court upon fifty points of error. The first group of points appear to urge the no-evidence and great weight and preponderance of the evidence questions to the court's findings and conclusions and the judgment rendered thereon to the effect that appellant furnished advertising time to Amarillo Furniture Company rather than Della Burk Lieurance personally.
Though KBUY's manager, Mr. McLaughlin, testified he sold the advertising time to Mrs. Lieurance, the statement of facts shows the account was with Amarillo Furniture, billed to Amarillo Furniture Company and that the checks representing the payments on the account were made by Amarillo Furniture or Amarillo Furniture Company. The record also shows that the institution was incorporated with a capital stock of $200,000.00; that it had filed its federal corporation income tax returns and state franchise tax returns each year; that there had never geen any intermingling of appellee's personal business with that of the corporation except that Mrs. Lieurance had loaned the corporation more thanb $100,000.00 from her personal estate; and that all receipts of Amarillo Furniture Company were used to pay its obligations. Mrs. Lieurance even ceased to draw salary from the corporation, apparently in an effort to cut operating costs. It is also uncontradicted in her testimony that she never individually guaranteed the financial obligations of the corporation.
Mr. McLaughlin, manager for KBUY, admitted he made no investigations from banks or financial rating agencies concerning the financial condition of Mrs. Lieurance's personal estate and the record is silent as to the condition of her personal finances except that the testified that she put all she had into the business. The KBUY manager also admitted that he never checked the trade-name records in Potter County to determine if there was any business being operated as Amarillo Furniture by Della Burk Lieurance, the owner.
The record showed Mrs. Lieurance had been connected with the furniture business since 1949. Before that time her father, E. T. Burk, had owned it and had given it to her and another daughter, Mrs. Easley. For a few years they operated it as a partnership. The Easleys, being primarily farmers and ranchers, wanted out of the business. A division was made whereby Mrs. Easley took the building housing the furniture company and Mrs. Lieurance took their interest in the business. The record does not show how the other sister acquired her twenty-five per cent interest in the business but it is uncontradicted that she owned such interest.
Mrs. Lieurance incorporated the business in 1952 and it appears to have been operated as a corporation even until the filing of the suit for $650.00. In fact, apellant in its pleading admitted it to be a corporation but alleged it was only an instrumentality by which Mrs. Lieurance conducted her personal business.
At the request of appellant the court made findings of fact and conclusions of law which were as follows:
FINDINGS OF FACT
'1. The Plaintiff, Radio KBUY, INC., furnished advertising time to Amarillo Furniture Company, Inc. over a period of at least two years on open account.
'2. The balance of the account which remained unpaid at the date of the trial was $650.00.
'3. All previous payments on the account were made by the Defendant, Amarillo Furniture Company, and credited by the Plaintiff to the Amarillo Furniture Company account.
'4. Amarillo Furniture Company is a corporation incorporated under the laws of Texas in 1952.
'5. There was no intermingling of the funds of Amarillo Furniture Company and its president, Della Burk Lieurance.
'6. Plaintiff, Radio KBUY, INC., did not rely on any representation of Della Burk Lieurance in extending credit to Amarillo Furniture Company.
'7. Della Burk Lieurance, individually, did not agree to pay the debt of the corporation, Amarillo Furniture Company.
'1. Amarillo Furniture Company is legally indebted to the Plaintiff, Radio KBUY, Inc., in the amount of $650.00.
'2. There is not sufficient evidence to disregard the corporate entity of Amarillo Furniture Company.
Appellant then objected to the findings and conclusions made, requested that they be set aside, and that the court find in accordance with its theory to the effect that the advertising was furnished to Mrs. Lieurance rather than the corporation; that all payments on account were made by Mrs. Lieurance as the alter ego of Amarillo Furniture Company; that she advanced money to herself from funds carried under the name of Amarillo Furniture Company; that appellant reasonably relied upon Mrs. Lieurance's...
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