Coleman Furniture Corp. v. Lieurance

• Decision Date: 05 July 1966
• Docket Number: No. 7632,7632
• Citation: 405 S.W.2d 646
• Parties: COLEMAN FURNITURE CORPORATION, Appellant, v. Della Burk LIEURANCE, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 646

405 S.W.2d 646

COLEMAN FURNITURE CORPORATION, Appellant, v. Della Burk LIEURANCE, Appellee.

No. 7632.

Court of Civil Appeals of Texas Amarillo.

July 5, 1966.

Rehearing Denied Aug. 8, 1966.

Lumpkin, Watson & Smith, Amarillo, for appellant.

Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee .

DENTON, Chief Justice.

This suit, filed by appellant Coleman Furniture Corporation, seeks recovery from Della Burk Lieurance individually for furniture sold by the plaintiff. The suit alleges two counts: that the defendant below individually guaranteed in writing the payment for merchandise sold to Amarillo Furniture Company, Inc.; and that Coleman sold the merchandise to Mrs. Lieurance through her alter ego, American Furniture, Inc., relying on her individual credit based on her false and fraudulent representations to Coleman who relied on such representations. On January 7, 1964 Coleman was granted a summary judgment against Amarillo Furniture Company for this same merchandise. A non-suit was taken against Mrs. Lieurance. The present suit was filed approximately a year later. The trial court instructed a verdict for Mrs. Lieurance and Coleman Furniture appeals.

Amarillo Furniture Company, Inc. was incorporated in 1952. Mrs. Lieurance, the president, acted as its general manager. She did most of the hiring and firing of the employees and ordered most of the merchandise. The Coleman company had done business with Amarillo Furniture since 1944 and had sold the company thousands of dollars worth of furniture during that period. The two invoices sued upon here were dated December 10, 1962 for $3612.40 and March 5, 1963 for $1157.65. The basic question is whether or not Mrs. Lieurance is personally liable for the indebtedness.

On an appeal from a judgment on an instructed verdict the appellate court must review the evidence in the light most favorable to the plaintiff, disregarding all conflicts and indulging every intendment reasonably deducible from the evidence in favor of the losing party. 4 Tex.Jur.2d, Appeal and Error--Civil, Section 835, page 384 and the authorities cited therein.

We will first consider appellant's asserted cause of action of an alleged guaranty by Mrs. Lieurance to be personally responsible for the payments for the merchandise. It is uncontradicted the merchandise was charged and billed to Amarillo Furniture Company and none had been charged or billed to Mrs. Lieurance individually. On January 25, 1962 Mrs. Lieurance wrote Mr. Gunn of the Coleman Company, the following letter:

'I received your letter concerning my credit with your company.

'I ordered this furniture in good faith. Nor did I buy any other. I need this furniture. I will take care of it. I will make a special effort--now, tell me what

'Thank you for all past considerations.

'Thank you you all past considerations.

Sincerely,

Della Burk Lieurance'

A letter of June 1, 1963 also addressed to Mr. Gunn reads as follows:

'I am sorry to be slow--but am having a tough time getting money in as fast as I should. I will send some this month and--will take care of the balance.

'Thank you.

Sincerely,

Della Burk Lieurance'

A guaranty is an undertaking by one person to be answerable for the payment of some debt or the performance of some contract or duty by another person, who himself remains liable. Wood v. Canfield Paper Company, 117 Tex. 399, 5 S.W.2d 748.

Business relations between the parties hereto had existed since 1944. Mr. Gunn, Coleman's secretary and assistant treasurer, testified by deposition. His duties included approval of credit of purchases on open account. He testified: 'I approved the credit on this particulr order based on my previous experiences with Amarillo Furniture Company and Della Burk Lieurance. Having done business with Mrs....