East Texas B. & T. Co. v. Mid-South Contractors, Inc.
Decision Date | 26 February 1970 |
Docket Number | MID-SOUTH,No. 468,468 |
Citation | 451 S.W.2d 782 |
Parties | EAST TEXAS BANK AND TRUST COMPANY, Appellant, v.CONTRACTORS, INC., Appellee. |
Court | Texas Court of Appeals |
Smead, Roberts, Harbour, Smith, Harris, French & Parker, Earl Roberts, Jr., Longview, for appellant.
No brief filed for appellee.
Plaintiff, East Texas Bank and Trust Company, sued Defendant, Mid-South Contractors, Inc., alleging that Mid-South failed to pay the bank the sum of $4,737.00 owed Jack Brewer, d/b/a Brewer Tile Company upon a construction contract, as required by the terms of an assignment from Jack Brewer, assigning such amount to the bank to secure the payment of a $6,809.10 promissory note owed the bank. Appellee, Mid-South answered by a general denial and by sworn pleading alleging that Jack Brewer d/b/a Brewer Tile Company, defaulted, breached, and failed to perform the required services and condition of such contract or account receivable and such failure, breach and non-performance by Jack Brewer, d/b/a Brewer Tile Company, precluded any and all alleged responsibility and/or liabilities, if any, of this Defendant to said Jack Brewer, d/b/a Brewer Tile Company, and his assignee.
Trial was before a jury. After both sides had rested, Plaintiff moved that the cause be withdrawn from the jury and that the court enter judgment in favor of the bank for $4,737.00, together with attorney fees. Mid-South, after confessing liability for the sum of $846.11, presented a similar motion requesting that the court enter juddgment for the bank in the amount of $846.11, together with attorney's fees. The trial court denied the plaintiff's motion and granted the defendant's motion and entered judgment in favor of the bank against Mid-South for $846.11, together with a $500.00 attorney fee. Being dissatisfied with the amount of the judgment of the Court, the bank perfected this appeal. For convenience the appellant will be referred to as 'the bank' and the appellee as 'Mid-South'.
Appellant, East Texas Bank and Trust Company, does not seek a reversal and remand for another trial but confines its points of error to the proposition that the trial court erred in limiting its recovery to the sum of $846.11 and in refusing to enter judgment for the bank for $4,737.00, or in the alternative for $3,500.00 for the reason that the appellant was entitled to either of such amounts as a matter of law. In other words the bank seeks only a rendition of whatever amount it is entitled to receive under the undisputed evidence.
Appellee, Mid-South, filed no brief in this case, hence we must accept as true the statements of fact made by the bank, Rule 419 Texas Rules of Civil Procedure; Brehmer v. City of Kerrville, 320 S.W.2d 193 (Tex.Civ.App., San Antonio, 1959, n.w.h.).
The record shows that Jack Brewer, d/b/a Brewer Tile Company, held a subcontract under appelle...
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