Ballew v. Casey

• Decision Date: 15 January 1884
• Docket Number: Case No. 1608.
• Citation: 60 Tex. 573
• Court: Texas Supreme Court
• Parties: J. M. BALLEW v. J. A. CASEY ET AL.

60 Tex. 573

J. M. BALLEW

v.J. A. CASEY ET AL.

Case No. 1608.

Supreme Court of Texas.

Jan. 15, 1884.

APPEAL from Johnson. Tried below before the Hon. Jo Abbott.

This was a suit brought by the appellees against the appellant on an itemized account for goods and merchandise amounting to $1,030.84, alleged to have been sold and delivered to the defendant, for which he promised to pay on demand what they were reasonably worth. Attached to the petition was the account, sworn to by one of the plaintiffs before a notary public, but it did not appear in the certificate of the notary that his official seal was affixed thereto, or that he had no official seal. Plea, general denial; cause submitted to the judge without a jury; judgment for the plaintiffs for the amount sued for.

On the trial the defendant objected to the introduction of the itemized account and the affidavit thereto as evidence: 1st. For irrelevancy, in that the allegations of the petition showed the suit to be founded on an implied contract to pay what the goods were reasonably worth, and not for a fixed and stipulated price as indicated on the face of the account. 2d. Because it did not appear from the account or affidavit that the account was supported by the affidavit of either the plaintiffs or their attorneys. 3d. Because plaintiffs' petition disclosed the fact that suit was brought for what the goods alleged to have been sold were reasonably worth, thereby requiring a judicial ascertainment of the fact as to how much the goods were worth, and consequently that the account thus offered, if there was no express agreement as to the price of the goods, was not such an open account as was contemplated under art. 2266, Revised Statutes, to be made available as prima facie evidence of its correctness by the party offering it. These objections were overruled, to which the defendant excepted, and the account and affidavit were introduced by the plaintiffs as evidence.

The defendant testified as a witness that the articles specified in the account upon which the suit was instituted were purchased from the plaintiffs at an agreed price, and at the times of the purchases of the several articles therein mentioned, the prices charged for them, and set out in the account, were by him and the plaintiffs agreed upon as the prices of the articles respectively.

The defendant appealed from the judgment and assigned several grounds of error, all of which related to the admission in evidence of the account and affidavit, and also to the insufficiency of the evidence under the allegations of the petition to warrant the rendition of a judgment against the defendant, because the plaintiffs' action, as he urged, was based upon an implied promise to pay the value of the goods sold, and not upon a contract to pay a stipulated or agreed price.

No briefs on file for either party.

WALKER, P. J. COM. APP.

The evidence furnished by the defendant's testimony was sufficient to sustain the judgment that was rendered. According to the plaintiffs' petition the defendant “bound, obligated himself, and promised to pay” the plaintiffs, on demand, what the goods were reasonably worth. The evidence of what that value was is shown by agreement between the contracting parties at the times of the respective sales and delivery of the...