Acco Intern. Paper Stock Corp. v. Sea-Land Service, Inc., SEA-LAND

• Decision Date: 05 March 1981
• Docket Number: No. 17883,SEA-LAND,17883
• Parties: ACCO INTERNATIONAL PAPER STOCK CORPORATION, Appellant, v.SERVICE, INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 855

615 S.W.2d 855

ACCO INTERNATIONAL PAPER STOCK CORPORATION, Appellant, v. SEA-LAND SERVICE, INC., Appellee.

No. 17883.

Court of Civil Appeals of Texas, Houston (1st Dist.).

March 5, 1981.

Ducoff & Chanon, Bernard L. Chanon, Theodore S. Abbott, Houston, for appellant.

Ross, Banks, May, Cron & Cavin, John Mayer, Houston, for appellee.

Before COLEMAN, C. J., and PEDEN and SMITH, JJ.

SMITH, Justice.

This is an appeal in a suit on a sworn account. Sea-Land Service, Inc., appellee, filed suit against Acco International Paper Stock Corp., appellant, for freight charges. Trial was to the court without a jury and judgment in the amount of $4,191,43 was entered for Sea-Land.

We reverse and remand.

Sea-Land is a steamship company engaged in the business of carrying cargo. Acco is an exporter of waste paper. Sea-Land's agent in soliciting the Acco business informed Acco that his company could save Acco money if they used Sea-Land's service. Sea-Land agreed to receive Acco's shipment of waste paper sent from Houston to the port of shipment, to prepare the shipment by stuffing containers owned by Sea-Land, and to ship them to the point of destination. Sea-Land's charges were based on applicable tariffs. Acco's payments were based on actual weight. The difference between tariff charges billed by Sea-Land and payments made by Acco, based on actual weight, is the basis of this suit.

In its first point of error appellant asserts that an action to recover shipping charges must be brought within three years. Texas Rev.Civil Statutes Ann. Article 5526b (Vernon 1980). It urges that the freight charges included for the first time in appellee's second amended petition are barred by the three year statute of limitations.

The appellee alleges in two cross-points that the trial court erred and abused its discretion in 1) permitting the appellant to file a plea of limitations on the day of trial, and 2) denying the appellee a continuance.

Article 5526b, Sec. 1 states:

Section 1. All actions at law by carriers of property for compensation or hire for recovery of their charges, or any part thereof, shall be begun within three years from the time the cause of action accrues, and not after.

We agree that the three year statute of limitations applies in this case, if the matters alleged in appellee's second amended petition are new matters not alleged in prior petitions. However, in the event all or any part of the transactions alleged in the appellee's second amended petition were plead in petitions filed prior to the running of the three year statute, appellee can recover to the extent that the statute does not apply.

The burden of proof was on appellee to prove that the transactions set forth in its second amended petition were a part of the same transactions alleged in prior petitions; however, there appear to be valid reasons why the appellant did not know what quantum of proof would be required of it by the trial court. In this connection, approximately ten minutes prior to commencement of the trial, appellant filed a supplemental pleading in which for the first time it attempted to assert the defenses of the two, three and four year statutes of limitations. Appellee objected to the trial court's permitting the filing, moved that the instrument be struck, plead surprise, and moved to withdraw its announcement of ready. The appellee further requested a continuance if the trial court did not grant its motion to strike. The trial court denied appellee's motion for a continuance and...