Edinburg Meat Products Co. v. Vernon Co.
| Decision Date | 31 March 1976 |
| Docket Number | No. 1030,1030 |
| Parties | EDINBURG MEAT PRODUCTS COMPANY, Appellant, v. The VERNON COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Alfonso Ibanez, Pena, McDonald, Prestia & Zipp, Edinburg, for appellant.
Kelley, Looney, Alexander & Hiester, Edinburg, for appellee.
This is an appeal from a judgment for plaintiff on the pleadings in a suit on sworn account. In the trial court, the Vernon Company was plaintiff and Edinburg Meat Company was defendant. The original petition and the account statements thereto attached, duly verified in accordance with the requirements of Rule 185, T.R.C.P., was filed on December 3, 1974. The petition sets out a cause of action based on an account with defendant for the sale of some calendars to defendant by plaintiff.
Defendant filed an unsworn original answer on December 5, 1974, which consisted of a general denial. On January 25, 1975, defendant filed a pleading entitled 'Denial of Sworn Account', which reads, as follows:
'DENIAL OF SWORN ACCOUNT TO THE HONORABLE JUDGE OF SAID COURT:
Again comes Defendant, EDINBURG MEAT PRODUCTS CO., and shows the Court that the claim alleged in Plaintiff's Original Petition which is the foundation of its action herein, including the exhibits therein, are not just or true in the following particulars:
(a) In that the invoices designated as Exhibit 'A' are duplication orders, erroneously shipped by Plaintiff to Defendant herein and the merchandise therein is priced at an excessive price not agreed upon by Defendant herein.
(b) In that similar merchandise required one year prior was missent to another company in California, and credited therefore was to be given Defendant herein on any new purchases. Therefore, legal offsets and credits are not shown or given on said account.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiff take Nother by its suit and that Defendant go hence with his costs without Day.
EDINBURG MEATS PRODUCTS CO.
BY /s/ A.J. Vale
A. J. Vale, President'
The jurat attached thereto is in the language:
'SUBSCRIBED AND SWORN to before me by the said Arturo J. Vale, on this the 23rd day of January, 1975.
Texas'
Plaintiff, on May 13, 1975, filed its first supplemental petition, which alleged an alternative cause of action against defendant based on breach of contract. It was asserted therein that defendant entered into written contracts with plaintiff, whereby plaintiff was to furnish calendars to defendant as set out in the contracts, and defendant was to pay plaintiff the agreed price for same, which promise to pay was breached by defendant.
On May 19, 1975, defendant filed a pleading which was also entitled 'Denial of Sworn Account'. It reads, as follows:
'DENIAL OF SWORN ACCOUNT TO THE HONORABLE JUDGE OF SAID COURT:
Now Comes Edinburg Meat Products Company, Defendant in the above numbered and styled cause, and shows the Court that each and every item in Plaintiff's Petition which is the foundation of Plaintiff's action, including the attached exhibits, is not just and true. And of this he prays judgment that Plaintiff take nothing by his suit and that Defendant go hence with his costs without day.
BEFORE ME, the undersigned authority, A Notary Public in and for said County and State, on this day personally appeared Alfonso Ibanez, to me well known to be a credible person and qualified in all respects to make this affidavit, who being by me duly sworn, upon oath states that he has read the foregoing Denial of Sworn Account designed to be used in the cause of The Vernon Co. vs. Edinburg Meat Products Co. in the County Court at Law in Hidalgo County, Texas, and knows the contents thereof, that he is the attorney of record of the Defendant in such cause and that such Denial of Sworn Account is in every respect true and correct.
/s/ Alfonso Ibanez
SUBSCRIBED AND SWORN TO before me by the said Alfonso Ibanez on this the 19th day of May, A.D., 1975, to certify which witness my hand and seal of office.
/s/ Yolanda D. Garcia
Notary Public in and for
Hidalgo County, Texas'
The case was set for trial before the court without a jury. Plaintiff, when the case was called for trial on May 22, 1975, announced 'ready', and then moved for judgment on the pleadings on the ground that its cause of action based on sworn account had not been controverted by a legally sufficient sworn denial. At the conclusion of argument on the motion, judgment was rendered for plaintiff. No evidence was introduced by plaintiff. The judgment, in part, recites:
'. . . The Court, after having heard the evidence and argument of counsel on Plaintiff's Motion, is of the opinion that Defendant's operative answer is insufficient as a matter of law and therefore Plaintiff should have Judgment as plead for in its Original Petition herein, to-wit: for $757.53, plus interest on its Judgment at the rate of 6% Per annum, plus $200.00 in reasonable attorney's fees, and its costs of suit.
THEREFORE, it is ORDERED, ADJUDGED AND DECREED that Plaintiff recover of Defendant and Defendant pay to Plaintiff its damages in the amount of $757.53, plus interest on that amount at the rate of 6% Per annum from the date of Judgment, attorney's fees in the amount of $200.00, and costs of suit, for which let execution issue.'
Defendant has duly perfected an appeal from that judgment.
Defendant, in points of error 1 and 2, contends that the trial court erred in rendering judgment for plaintiff on the pleadings because its defensive pleadings were sufficient to controvert the action brought against it by plaintiff. It argues that the first 'Denial of Sworn Account' was sufficient to put the matters raised in plaintiff's original petition in issue, and that the second 'Denial of Sworn Account' was, in fact, a supplemental answer to plaintiff's unverified supplemental petition, which put in issue the allegations made in the supplemental petition.
Rule 185, T.R.C.P., insofar as the same is applicable to this appeal, states that a proper pleading based on a sworn account:
'. . . shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true; . . .'
Rule 93(k), T.R.C.P., provides, in part, that the following matters, unless the truth of such matters appears of record, shall be verified by affidavit:
Plaintiff claims that defendant's 'Second Denial of Sworn Account' is, in fact, an amended pleading which completely replaced the first 'Denial of Sworn Account'. It further claims that even though it be held that the 'Second Denial' is merely a supplemental answer in response to plaintiff's first supplemental petition, or even if the two denials are considered together, that the requirements of Rules 185 and 93(k), T.R.C.P., have not been met in connection with its cause of action based on sworn account, as alleged in its original petition.
The cases which have interpreted Rules 185 and 93(k) have uniformly required strict adherence to the requirements of the rules . Goodman v. Art. Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ.App.--Dallas 1973, writ ref'd n.r.e.); Oliver Bass Lumber Co ., Inc. v. Kay & Herring Butane Gas Co., Inc., 524 S.W.2d 600 (Tex.Civ.App.--Tyler 1975, no writ). A denial of a sworn account must be in compliance with those rules, and if it is not, the defendant will not be permitted to deny the plaintiff's claim or any item included therein. Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App.--Houston (14th Dist.) 1973, writ ref'd).
Rule 185 is a rule of evidence. In the absence of a sworn denial in compliance with the requirements of the Rule, the sworn account is received as prima facie evidence as against the defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges. 2 McDonald, Texas Civil Practice, § 7.31 (1970) .
It is not necessary for this Court to decide whether the 'Second Denial of Sworn Account' is an amended pleading that replaced the first 'Denial of Sworn Account'. Neither the first nor the second denial is in substantial compliance with Rules 185 and 93(k), T.R.C.P. Whether the second denial is, in effect, an answer in response to plaintiff's first supplemental petition is immaterial to the disposition of this appeal. Judgment was not rendered on the basis of a breach of contract. Plaintiff's motion for judgment on the pleadings was directed to its action on sworn account. It was stated in the judgment: 'Plaintiff should have judgment as plead for in its Original Petition'; judgment was rendered on that basis.
Even if we were to consider the first denial as a live pleading, it does not meet all of the mandatory requirements of the Rules. It...
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