Beddall v. Reader's Wholesale Distributors, Inc.

• Decision Date: 13 October 1966
• Docket Number: No. 14870,14870
• Citation: 408 S.W.2d 237
• Parties: George BEDDALL, Appellant, v. READER'S WHOLESALE DISTRIBUTORS, INC., Appellee. . Houston
• Court: Texas Court of Appeals

Page 237

408 S.W.2d 237

George BEDDALL, Appellant, v. READER'S WHOLESALE DISTRIBUTORS, INC., Appellee.

No. 14870.

Court of Civil Appeals of Texas Houston.

Oct. 13, 1966.

Rehearing Granted Nov. 3, 1966.

Wm. E. Hornbuckle, III, Wyckoff & Russell, James Wyckoff, Houston, for appellant.

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

WERLEIN, Justice.

Appellee, Reader's Wholesale Distributors, Inc., sued William T. Myers and Claude Myers, individually and as partners, d/b/a Myers Floor Company, and Myers Floors, Inc., on a sworn itemized account, and appellant, George Beddall, as guarantor in writing of the indebtedness of Myers Floor Company. Upon request of appellee Claude Myers and Myers Floors, Inc., who were not served with citation, were dismissed from the suit without prejudice. The case was tried by the court without a jury, and the court upon the pleadings, stipulations made at the hearing, and arguments of the parties, rendered judgment in favor of appellee against William T. Myers in the sum of $3,600.00 and against appellant, George Beddall, who alone appeals, in the sum of $1,415.59.

Findings of fact and conclusions of law were not requested or filed. The statement of facts consists solely of the stipulations of the parties. They stipulated that prior to May 28, 1963, there existed a written contract of guaranty, wherein George Beddall guaranteed the indebtedness of William T. Myers and Claude Myers, individually and as partners doing business as Myers Floor Company; that on May 30, 1963, by written letter, George Beddall revoked his written guaranty and that the revocation was received by appellee on May 30, 1963; that the written contract and guaranty was to the effect that George Beddall would guarantee the debts of the partnership, Myers Floor Company, to Reader's Wholesale Distributors, Inc.; that in such guaranty George Beddall had the right to revoke in writing at any time, and that such revocation was made on May 30, 1963; and that the address of the defendant, Claude Myers is unknown, and he cannot at the present time be located for purpose of service of citation.

Appellant contends that this case should be reversed because there is no evidence or stipulation that the guaranty expressly provided that the guarantor would be liable for debts incurred by the other defendants prior to the date the guaranty agreement was signed. The stipulation of the parties was to the effect that the written contract of guaranty existed prior to May 28, 1963. Appellant was advised when served with citation that the debt which appellee was asserting ran from November 5, 1962, and yet he did not testify or introduce any evidence as to the date of the agreement of guaranty. He did except in his original answer to the fact that appellee did not allege the date and the terms of the guarantee, but he failed to have the court pass on his exceptions and hence waived the same. There is nothing in the record before us to indicate that the court extended the guaranty to cover any indebtedness incurred prior to the date the guaranty agreement was executed.

This case was not submitted to the trial court upon an agreed statement of facts filed with the Clerk, as provided by Rule 263, Texas Rules of Civil Procedure. Said stipulations were made by counsel in open court. Hence the trial court could make any findings and draw any inferences supported by the evidence. Perry v. Aetna Life Insurance Company of Conn., Tex.Civ.App., 380 S.W.2d 868, writ ref., n.r.e. Furthermore, since there are no findings of fact and conclusions of law it will be presumed that the trial judge found every issuable fact necessary to sustain his judgment, where such fact is raised by the pleadings and can be supported by any reasonable theory supported by the evidence and authorized by law. McDonald, Texas Civil Practice, Vol. 4, Sec. 16.10(d), pp. 1302--3, and authorities there cited.

Appellant contends under his first point of error that appellee should not recover because it failed to plead and prove the point of beginning of the guaranty agreement and facts surrounding a default by the original debtors, such default being a pre-condition to any liability of appellant under the agreement. We are not in accord with this contention. The suit was brought by appellee on an open sworn account which showed the date that each item of indebtedness was incurred, and the total amount of the indebtedness owing appellee by William T. Myers against whom judgment was rendered. Appellant and appellee stipulated in open court that prior to May 28, 1963, there existed a written contract of guaranty wherein appellant guaranteed the indebtedness of William T. Myers and Claude Myers, individually and as partners doing business as Myers Floor Company, and guaranteed the debts of the partnership to appellee. The court found in favor of appellee and entered a default judgment against the said William T. Myers for the amount of the claim as set out in the open sworn account. Thus, the amount of the indebtedness of the said William T. Myers to appellee was established.

Appellant was a party to such suit and was advised as to the nature of the claim and the indebtedness that was being sued for. At the trial it was stipulated that the guarantee terminated on May 30, 1963. Hence judgment was not entered against appellant for any amount of indebtedness accruing subsequent to such date. The guarantee of appellant was not limited or restricted in any way whatever but covered all the indebtedness owing appellee by Myers. The only limitation or restriction was contained in the stipulation that the guarantee was revoked on May 30, 1963. In his judgment the court found that appellant was indebted to appellee on his written contract of guaranty in the amount of $1,415.59. We are of the opinion that appellee sufficiently identified and established the amount of the indebtedness which was guaranteed by appellant who was a party to the suit, and that in the absence of any restriction or limitation placed upon the agreement of guaranty the court property entered judgment as was done.

Under his...