California Chemical Company v. Sasser

• Decision Date: 28 December 1967
• Docket Number: No. 354,354
• Citation: 423 S.W.2d 347
• Parties: CALIFORNIA CHEMICAL COMPANY, Appellant, v. Floyd E. SASSER, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 347

423 S.W.2d 347

CALIFORNIA CHEMICAL COMPANY, Appellant, v. Floyd E. SASSER, Appellee.

No. 354.

Court of Civil Appeals of Texas.

Corpus Christi.

Dec. 28, 1967.

Walter M. Kelly, McAllen, for appellant.

Travis Hiester, of Kelley, Looney, McLean & Littleton, Edinburg, for appellee.

OPINION

SHARPE, Justice.

This is a suit on a sworn account instituted by appellant, a corporation, seeking recovery of $8,454.85 for goods, wares, chemicals and fertilizers allegedly sold and delivered to appellee, and $3,500.00 for attorneys fees. After non-jury trial the lower court rendered judgment that appellant take nothing by its suit. Findings of fact and conclusions of law were not requested nor filed .

Appellee filed original answer which included a special exception and a plea in bar based upon the two year statute of limitations, and, also, a proper sworn denial of the account. Appellant then amended its petition to allege that appellee had acknowledged the alleged account in writing. Appellee by amended answer reasserted the same defenses of sworn denial and limitation. Appellant's alleged account was based upon transactions between July 10, 1962 and January 22, 1963. The letter of alleged acknowledgment relied on by appellant is dated September 26, 1963. This suit was filed on May 14, 1966.

Appellant's first three points assert that the trial court erred in failing to find (1) that appellant was entitled to judgment on the account as proved, (2) that appellee had acknowledged the debt sued upon in writing, (3) that appellee offered to pay the debt sued upon in writing. Appellant's fourth point contends that the trial court erred in finding that the debt sued upon was barred by the two year statute of limitations.

We will first consider appellant's point one along with appellee's counterpoint one which asserts that the trial court correctly held that appellant failed to discharge its burden of proof in establishing the existence of an account.

Appellant's evidence consisted of the testimony of two witnesses and certain exhibits. Appellee did not offer evidence. One of appellant's witnesses testified only concerning attorney's fees. The other witness was Mr. Ardis Barnes, appellant's branch sales manager. He identified certain records in the files of appellant, and particularly a number of invoices to appellee. Mr. Barnes testified that he had no personal knowledge of the alleged transactions with appellee and his only knowledge of the account was that reflected by the records in appellant's file. There was no evidence of delivery to appellee of the items described in appellant's invoices; nor was there any evidence of an agreement as to the price of such items or that the prices charged were reasonable, nor that any of the invoices in evidence were ever sent to appellee.

Appellee's sworn denial of the account placed the burden upon appellant to establish each and every item of it by legal and proper evidence. J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941). A recovery by appellant was precluded here because of its failure to produce evidence of delivery to appellee of the merchandise described in the invoices. Texan Man's Shop Inc. v. Nunn-Bush Shoe Company, 401 S.W.2d 716 (Tex.Civ.App., Corpus Christi, 1966, n.w.h.). Appellant's recovery was also precluded by its failure to produce evidence that the prices charged for the goods involved were in accordance with an agreement, or in the absence of agreement, that they were usual, customary or reasonable. Marr v. Craddock, 406 S.W.2d 278 (Tex.Civ.App., Tyler, 1966, n.w.h.); Parker v. Center Grocery Company, 387 S.W.2d 903 (Tec.Civ.App., Tyler, 1965, n.w.h.); Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App., Dallas, 1963, n.w.h.).

The trial court correctly held that appellant failed to discharge its burden of proof to establish the existence of an account or the liability of appellee to appellant. Appellant's point one is overruled.

The above holding requires affirmance of the judgment. However, it further appears that even if appellant had properly proved its account, the same was barred by the two-year statute of limitation (Art. 5526, Vernon's Ann.Civ.St.) and appellee's letter of September 26, 1963 was not sufficient to remove such bar. We will briefly consider appellant's points two, three and four along with appellee's replies thereto.

The letter of September 26, 1963 relied on by appellee to remove the bar of the two-year statute of limitation is not sufficient to do so for several reasons. As copied in the Statement of Facts, said letter reads as follows:

'SASSER'S COMPLETE PERTILIZERS SEEDS * * * INSECTICIDES EDINBURG--DU 3--4544

September 26, 1963

Mr. F. X. Vaughn

District Manager

California Chemical Co.

Dear Sir:

I appreaciate your leniency on my account, which was caused by our unfortunate experience with Wesrten Land and cattle Company. As you are well aware we hold a judgement against them but to date We have not been able to collect anything. Yesterday we engaged new attorneys and hope to find something to levy on.

I can assure you that anything that I collect will be paid promptly to you. I have no other income except this store and due to the short crops in the valley this year I am barely making operating expenses and do not see how I can pay or promise anything at this time.

If you would care to contact Elick & Barnes Attorneys in the First National Bank at McAllen, Texas they will keep you informed of our progress on collecting the amount due us from Western. After I pay them there will not be enough to pay you completely but may be we can reduce the amount enough till I can pay the rest out of my business. Thank you.

yours respectfully

/s/ Floyd E. Sasser

Floyd E. Sasser

(Stamp) RJB SEP 30 1963'

There was no evidence to show that the account sued on by appellant was the same one referred to in the letter of September 26, 1963. In the absence of findings of fact there is an implied findig of the trial court that the account which is the subject matter of this suit was not the one referred to in said writing.

It further appears that even if the said writing did refer to the account sued on by appellant, it was insufficient to imply a promise to pay the same. Appellee's letters contains the statement, at the end of the second paragraph thereof, that 'I am barely making operating expenses and do not see how I can pay or promise anything at this time.' A similar situation was before the court in the case of Brickley v. Finley, 143 S.W.2d 433 (Tex.Civ.App., El Paso, 1940, n.w.h.) wherein the court held as follows:

'Assuming that it constitutes an acknowledgment of the justness of the debt, nevertheless, the letter contains this statement: 'There is no use for me to promise it.' Ordinarily, the law implies a promise to pay where the debtor, in writing, acknowledges the justness of the claim. But in our opinion a promise to pay cannot be properly implied from a mere admission of the justness of the debt where the writing in question contains an express refusal to promise payment. In the letter mentioned, by the sentence quoted, C. O. Finley in effect expressly refused to promise payment, and in the face of that express refusal we are of the opinion it is insufficient to imply a promise to pay.'

In Miller...