Burrus Mills, Inc. v. Hein

• Decision Date: 03 February 1966
• Docket Number: No. 14682,14682
• Citation: 399 S.W.2d 950
• Parties: BURRUS MILLS, INC., d/b/a Burrus Feed Mills, Appellant, v. Otto W. HEIN, etc., Appellee.
• Court: Texas Court of Appeals

Page 950

399 S.W.2d 950

BURRUS MILLS, INC., d/b/a Burrus Feed Mills, Appellant, v. Otto W. HEIN, etc., Appellee.

No. 14682.

Court of Civil Appeals of Texas, Houston.

Feb. 3, 1966.

Rehearing Denied Feb. 24, 1966.

Mattews & Matthews, Tom D. Matthews, Dallas, for appellant.

Walter M. Hilliard, Caldwell, Charles C. Smith, Jr., Cameron, for appellee.

WERLEIN, Justice.

This suit was brought by appellant, Burrus Mills, Inc., to recover on a verified open account for goods, wares and merchandise sold and delivered to appellee. Appellee filed his sworn denial under Rule 185, Texas Rules of Civil Procedure, denying that the account was just or true in whole or in part. The case was tried without a jury, and the trial court entered a take-nothing judgment against the plaintiff.

At the request of appellant, the court made and filed his findings of fact and conclusions of law. He found that appellant called appellee as an adverse witness and adduced from his testimony that he had ordered the goods and merchandise reflected by appellant's four invoices introduced in evidence, totalling $4,795.61; that the goods were shipped and delivered to him, and that he agreed to pay the amounts of the invoices; whereupon appellant rested its case. The court further found that appellee moved the court for judgment in his behalf on the ground that appellant had failed to discharge the burden of proof resting upon it, and the court granted such motion. The court concluded that appellant had failed to discharge the burden of proof resting upon it in that appellant did not prove that at the time of trial, its claim was just and true, that it was due and unpaid, and that alll just and lawful offsets, payments and credits had been allowed; and that therefore appellant was not entitled to recover judgment as against appellee for the amount of its alleged sworn account.

(1) The law is well settled that the effect of a defendant's verified denial of the correctness of a plaintiff's sworn account is to destroy the probative force of the itemized account attached to the petition and put the plaintiff upon proof of its claim. J. E. Earnest & Co. v. Word, Tex.Com.App.1941, 137 Tex. 16, 152 S.W.2d 325; Burtis v. Butler Bros., Tex.Civ.App., 243 S.W.2d 235; Bowyer v. Levy's of Tucson, Tex.Civ.App., 373 S.W.2d 369; H. G. Berning, Inc. v. Waggoner, Tex.Civ.App., 247 S.W.2d 570.

In the instant case, appellee admitted that he had ordered the merchandise as described in the invoices which were introduced in evidence without objection, that such merchandise was delivered to him, and that by ordering the same, he agreed to pay the price of the merchandise as listed in the invoices. He thereby admitted the correctness of the invoices and the prices charged for the goods delivered to him. The invoices show the terms of the sale to be 'Net 30 days'. The dates of the invoices show that the goods were shipped and delivered to appellee in March and April, 1962. The statement attached to appellant's open account shows that there was a partial payment made on March 7, 1962, in the sum of $893.11, on Invoice No. 64958 originally in the sum of $1,798.50, leaving a balance due of $905.39 on such invoice, and that the total balance was $4,795.61.

(2) The filing by appellee of his sworn denial under Rule 185, T.R.C.P., placed upon appellant the burden of proving up its claim as at common law and at least making out a prima facie case which would entitle it to recovery. By introducing the invoices in evidence and obtaining from appellee admissions that he had ordered the goods from appellant; that the invoices were in his possession; that the merchandise had been delivered to him, and that by ordering the same he had agreed to pay the price of the merchandise as listed in the invoices, appellant proved that the account was just, due and unpaid as of the date of the delivery of the goods or thirty days thereafter. Appellant might have gone further and proven by direct evidence that the claim was due and owing at the time of trial. However, there is nothing in the record to show that any change was made in the account or that any payments or offsets were made from the date of delivery or thirty days thereafter to the date of trial.

At the conclusion of its testimony, appellant rested, but did not move for judgment. Whereupon appellee moved the court for judgment in his favor on the ground that appellant had not proven the account was unpaid, contending that it was incumbent upon the appellant to make such proof. The court thereupon stated that it seemed to him that when a written sworn denial is filed it is incumbent upon the plaintiff to prove that the amount sued for has not been paid, but that he would reserve his ruling although he was of the opinion that appellee was entitled to judgment. Appellee thereupon was called to the stand by his counsel for the evident purpose of showing that the account had been paid. Appellant objected on the ground that appellee had not pleaded payment. Whereupon the court stated that the burden was on appellant to prove that the account, which had been denied under oath, was due and unpaid. The court then rendered judgment for appellee. In his judgment, the court cites the cases of H. G. Berning, Inc. v. Eaggoner, supra, and J. E. Earnest & Co. v. Word, supra.

(3) The function of appellee's verified denial was to destroy the probative force of the itemized account and put appellant upon proof of its claim. Such function was accomplished when it placed upon appellant the burden of proving up its claim as at common law.

When the probative force of appellant's itemized account was destroyed, both appellant and appellee were placed in the same position they would have been in had the suit been originally brought to prove up an unverified account. Appellee's plea that the account was not just and verified was not a general denial nor a plea of payment, nor did it prevent him from filing a general denial and a plea of payment and proving the payments that were made by him. Rule 95, T.R.C.P., provides:

'When a defendant shall desire to prove payment, he shall file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the aplintiff full notice of the character thereof.'

(4, 5) Payment is an affirmative defense which ordinarily has to be pleaded and proved by the defendant. The purpose of such plea is to give the plaintiff the plaintiff full notice of the character payment. A plea that an account is not just or true goes to the matter of the account as pleaded by the plaintiff. Where the probative force of the verified account is destroyed and the burden of proving the claim is placed on the plaintiff, the defendant's plea that the account is not just or true ceases to be of any further effect. It does not relieve the defendant from pleading and proving payment and the nature of the payments made, as required by Rule 95.

(6) We have neither found nor been cited to any Texas case directly in point. See AmerJur.2d, Vol. 1, p. 386, Accounts and Accounting, Sec. 13, where it is stated: 'The defendant should plead any...