Collins v. Kent-Coffey Mfg. Co., KENT-COFFEY
| Decision Date | 22 May 1964 |
| Docket Number | No. 3888,KENT-COFFEY,3888 |
| Citation | 380 S.W.2d 59 |
| Parties | Ray COLLINS, Appellant, v.MANUFACTURING COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Day & Donalson, James E. Day, Jr., Dallas, for appellant.
Ungerman, Hill, Ungerman & Angrist, Vernon O. Teofan, Dallas, for appellee.
Kent-Coffey Manufacturing Company sued Ray Collins upon a verified account. Ray Collins filed an answer which was not verified. He denied generally plaintiff's allegations; specifically denied that $1,406.76 of the account was lawfully chargeable to him, alleging it was the debt of a corporation, and generally claimed an offset for damage to the furniture delivered to him. Kent-Coffey Manufacturing Company filed a motion for summary judgment to the effect that its suit was upon a verified account and that Collins' answer was insufficient to assert a defense. The court granted plaintiff's motion and rendered judgment against Collins for the amount of the verified account. Collins has appealed.
Appellant's points are that the court erred in holding there was no genuine issue of material fact because (1) the sales after December 23, 1962, were to be made to Ray Collins Sales Company, Inc.; (2) appellant was entitled to an offset because of damage to furniture delivered to him. He says that such defense and offset did not require verification.
Appellee's suit was upon an open account, verified in accord with Texas Rules of Civil Procedure, rule 185. Appellant's answer was not sworn to. Appellant's position is that the allegations of his unverified answer raised issues of fact as to whether a portion of the account was lawfully chargeable to him and whether he was entitled to an offset to said account by reason of damage to the merchandise delivered to him. Rule 185 provides that when an action is founded upon an open account for merchandise, supported by affidavit of the plaintiff that such claim is within his knowledge just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the defendant files a written denial, under oath, stating that such claim is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust. 'When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein * * *'. Ap...
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...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......
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...against the defendant, and that he did not owe it, may not be proved in the absence of such a denial. Collins v. Kent-Coffey Mfg. Co., 380 S.W.2d 59 (Tex.Civ.App.1964, writ ref'd); First National Bank of San Angelo v. Sheffield, 475 S.W.2d 820 (Tex.Civ.App.1972, no writ); Yelton v. Bird Lim......
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...Co. v. Gifford-Hill & Co., 468 S.W.2d 897 (Tex.Civ.App.--Houston (1st Dist.) 1971, no writ); Collins v. Kent-Coffey Manufacturing Co., 380 S.W.2d 59 (Tex.Civ.App.--Eastland 1964, writ ref'd). In oral argument before this court, Jeffrey contended that Plotnick cannot rely upon the defect in ......
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Manges v. Mustang Oil Tool Co., Inc.
...he will not be permitted to deny the plaintiff's sworn account or any item contained therein. Collins v. Kent-Coffey Manufacturing Company, 380 S.W.2d 59 (Tex.Civ.App.--Eastland 1964, writ ref'd). Defendant's written denial in the instant case does not meet the requirements of a verified de......