Boysen v. Security Lumber Co., Inc.

• Decision Date: 24 December 1975
• Docket Number: No. 1252,1252
• Citation: 531 S.W.2d 454
• Parties: Fred F. BOYSEN, Sr., dba Bissonnet Roofing Co., Appellant, v. SECURITY LUMBER COMPANY, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 454

531 S.W.2d 454

Fred F. BOYSEN, Sr., dba Bissonnet Roofing Co., Appellant, v. SECURITY LUMBER COMPANY, INC., Appellee.

No. 1252.

Court of Civil Appeals of Texas Houston (14th Dist.).

Dec. 24, 1975.

Rehearing Denied Jan. 14, 1976.

Anthony L. Vetrano, Jr., Houston, for appellant.

William Fred Hagans, Bracewell & Patterson, Houston, for appellee.

CURTISS BROWN, Justice.

This is a suit on a sworn account.

Security Lumber Company, Inc. (Security or appellee) filed suit against Fred Boysen, Sr., individually and dba Bissonnet Roofing Company (Boysen or appellant) for money owed to it on an account under which it had furnished to Boysen various goods, merchandise, materials and/or services. Security's petition was properly verified so as to constitute prima facie evidence of the justness of the claim as provided by Tex.R.Civ.P. 185. Boysen's unsworn answer was accompanied by a sworn affidavit which stated that the 'cause of action, account and claim against him and in favor of SECURITY LUMBER COMPANY, INC., is not a just and due amount and that all just and lawful offsets, payments and credits have not been allowed.' After a non-jury trial, the trial court entered judgment for Security. Boysen has perfected this appeal.

Appellant presents eight points of error. The second and third points assert that appellant's verified denial destroyed the probative force of the itemized account, and that appellee did not adequately prove the elements of a suit on a sworn account. Appellant's verified pleading, set out above, was insufficient to deny the account. See Solar v. Petersson, 481 S.W.2d 212 (Tex.Civ.App.-Houston (14th Dist.) 1972, no writ); Duncan v. Butterowe, Inc.,474 S.W.2d 619 (Tex.Civ.App.-Houston (14th Dist.) 1971, no writ); Youngblood v. Central Soya Co., 522 S.W.2d 277 (Tex.Civ.App.-Fort Worth 1975, writ ref'd n.r.e.); Tex.R.Civ.P. 185, 93(k). Therefore it was not necessary for appellee to prove by further evidence the elements of a suit on a sworn account. Appellant's points two and three are overruled.

Appellant's fourth point asserts that the prima facie effect of Rule 185 should not apply to him, inasmuch as he, as an individual was actually a third party. It is well established that the rule which makes a verified account prima facie evidence in the absence of a written denial under oath does not apply to transactions between third parties or parties who were strangers to the transaction. McCamant v. Batsell, 59 Tex. 363 (1883); Hassler v. Texas Gypsum Co., 525 S.W.2d 53 (Tex.Civ.App.-Dallas 1975, no writ). However, this exception has been applied where the plaintiff's own pleadings--or the invoices or other evidence exhibited as the basis of the obligation--reflected that the defendant was not a party to the original transaction. See McCamant v. Batsell, supra; Hassler v. Texas Gypsum Co., supra; Dean v. K-C Fuel Co., 524 S.W.2d 805 (Tex.Civ.App.-Austin 1975, no writ); Compression, Inc. v. James & Dilda, 481 S.W.2d 458 (Tex.Civ.App.-Houston (1st Dist.) 1972, no writ); Sampson v. Apco Oil Corp., 476 S.W.2d 430 (Tex.Civ.App.-Amarillo 1972, no writ); Starlight Supply Co. v. Feris, 462 S.W.2d 608 (Tex.Civ.App.-Austin 1970, no writ); Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App.-Corpus Christi 1968, writ ref'd n.r.e.); Robertson v. Rexall Drug & Chemical Co., 410 S.W.2d 200 (Tex.Civ.App.-Fort Worth 1966, no writ); McCollum v. May, 396 S.W.2d 170 (Tex.Civ.App.-Dallas 1965, no writ); Eng v. Wheeler, 302 S.W.2d 263 (Tex.Civ.App.-San Antonio 1957, writ dism'd); National Surety Corp. v. Dabney, 282 S.W.2d 70 (Tex.Civ.App.-Waco 1955, no writ); Duree v. Aetna Ins. Co., 66 S.W.2d 764 (Tex.Civ.App.-Amarillo 1933, no writ); Cf. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958); Hilton v. Musebeck Shoe Co., 505 S.W.2d 341 (Tex.Civ.App.-Austin 1974, writ ref'd n.r.e.); Nichols v. Acers Co., 415 S.W.2d 683 (Tex.Civ.App.Austin 1967, writ ref'd n.r.e.).

In the instant case, the appellee's pleadings alleged that goods, merchandise, materials and services were 'sold, delivered and furnished to and/ or for the Defendant.' Further, the statement and invoices attached to the petition and represented as the basis of the obligation are all addressed to 'Fred Boysen, Bissonnet Roofing Co.'. Therefore, this case does not fall within the 'stranger to the transaction' exception. Appellant's fourth point of error is overruled.

Appellant's first point of error asserts that the trial court erred in not dismissing the suit as to him in view of the unsworn allegations in his answer that he was merely an officer of the corporation that owed the debt, and therefore was not liable for the account in his individual capacity. In the absence of a proper sworn denial, the defense that the account was wrongfully charged against the defendant, and that he did not owe it, may not be proved. First National Bank v. Sheffield, 475 S.W.2d 820, 821 (Tex.Civ.App.-Austin 1972, no writ); Collins v. Kent-Coffey Manufacturing Co., 380 S.W.2d 59 (Tex.Civ.App.-Eastland 1964, writ ref'd); Yelton v. Bird Lime & Cement Co., 161 S.W.2d 353, 355 (Tex.Civ.App.-San Antonio 1942, writ ref'd w.o.m.). Since appellant's sworn affidavit was inadequate, he could not deny that he owed the debt. The first point of error is overruled.

Appellant's fifth point of error asserts that the trial court erred in awarding attorney's fees because there was no evidence of presentment and failure to pay for thirty days. In order to recover reasonable attorney's fees under Tex.Rev.Civ.Stat.Ann. art. 2226 (1971), the burden is on the plaintiff to plead and prove presentment of the claim to the debtor and failure to pay for thirty days thereafter. El Paso Moulding & Manufacturing Co. v. Southwest Forest Industries, Inc., 492 S.W.2d 331 (Tex.Civ.App.-El Paso 1973,...