Foran v. Smith, 12040

• Decision Date: 15 February 1950
• Docket Number: No. 12040,12040
• Citation: 228 S.W.2d 251
• Parties: FORAN v. SMITH.
• Court: Texas Court of Appeals

Page 251

228 S.W.2d 251

FORAN v. SMITH.

No. 12040.

Court of Civil Appeals of Texas, San Antonio.

Feb. 15, 1950.

Fischer, Wood, Burney & Glass, Corpus Christi, for appellant.

Neal B. Marriott, Corpus Christi, for appellee.

W. O. MURRAY, Chief Justice.

This suit was instituted by Clinton E. Smith on December 10, 1945, in the 117th District Court of Nueces County, Texas, against Lester Foran and Rodney S. King, seeking to recover as follows:

First, against both of the defendants upon a certain promissory note in the principal sum of $1200, dated December 30, 1944, payable to Gulf Star Foundries (which was the trade name of Clinton E. Smith), due June 30, 1945, providing for interest and attorney's fees, and signed by Lester Foran and Rodney S. King.

Second, against the defendant Lester Foran only, upon open account for office facilities furnished for the months of November and December, 1944, and January, 1945, at $50 per month, and one typewriter and two fluorescent lights, amounting to $95.26, making an aggregate sum of $245.26.

Third, upon open account against both defendants for the sum of $385.03, upon a claim described by plaintiff in paragraph No. VI of his petition, as follows: 'That a still further complaint against the said defendants, Lester Foran and Rodney S. King, Plaintiff would show that during the year 1945 said Lester Foran and Rodney S. King were doing business under a partnership known as Gulf Coast Industries. That from March 1, 1945, until October 30, 1945, there were various transactions and dealings between said Plaintiff and said Defendants and as a result of the said transactions these said Defendants became entitled to and did receive certain credit memorandums and the said Plaintiff did, at the special insistence and request of the said Defendants, advance and pay to the said Defendants by his invoice various sums of money. That as a result of the various transactions said Defendants are indebted to said Plaintiff on account in the sum of an additional $358.03.'

On January 2, 1946, the defendants filed an answer in which they plead lack of consideration for said note, denied indebtedness on said accounts and further asked for an accounting in the following language appearing in paragraph IV of this answer: 'The defendant Rodney S. King expressly denies, as does the defendant Lester Foran, that he is indebted in any manner to the plaintiff on account of transactions had by them as co-partners under the name 'Gulf Coast Industries' with the plaintiff, as alleged in paragraph VI of plaintiff's petition, and these defendants further allege that the plaintiff is indebted to these defendants on account of such transactions; and that, although these defendants have repeatedly demanded of and from the plaintiff an accounting for the funds due to these defendants by the plaintiff, the plaintiff has hitherto failed and refused to account to these defendants for such sum or sums of money as are due to them. These defendants are entitled, upon a hearing hereof, to have a full accounting of and from the plaintiff for any and all sums of money due to them under transactions had by them with the plaintiff during the period set forth in plaintiff's petition.'

On June 20, 1949, defendant Lester Foran filed his first amended original answer, which was very similar to the original answer except three unnumbered paragraphs were added after paragraph IV and generally referred to as sub-paragraphs 2nd, 3rd and 4th of paragraph IV. These three paragraphs read as follows:

'This Defendant would further show that on or about the 24th day of November, 1944, under and by virtue of an agreement made and entered into between the Plaintiff, this Defendant and Rodney S. King, the Plaintiff sold and conveyed unto this Defendant and to Rodney S. King, all of those certain flanged fittings and valves shown in Schedule 'A' attached hereto and incorporated herein by reference, of a reasonable value in excess of Fifty-Eight Thousand ($58,000.00) Dollars; that under the terms of such agreement delivery of such flanged fittings and valves was not made to this Defendant or to Rodney S. King, but they were retained by Clinton E. Smith, the Plaintiff herein, d/b/a 'Gulf Star Foundries', who agreed that he would cause the machining and preparation of such material for sale, and that upon completion of such materials for sale, would sell same for the account of this Defendant and for the account of the Defendant Rodney S. King; that at all times heretofore the Plaintiff, Clinton E. Smith, has had all of such materials in his possession, under his control and that he assumed the responsibility for the sale of such products and agreed to account to this Defendant for his pro rata share thereof.

'That the products shown on Schedule 'A' were at the time owned in proportion by this Defendant and the Defendant Rodney S. King, twenty-five per cent (25%) by this Defendant and seventy-five per cent (75%) by the Defendant Rodney S. King; that subsequent to such time the defendant Rodney S. King sold to the plaintiff his interest in such materials but that this Defendant is still entitled to receive an accounting for one-fourth (1/4th) of the proceeds from any sale of such materials and in the event that a portion of such materials have not been sold, then this Defendant is entitled to one-fourth (1/4th) of such materials in kind.

'That this defendant has information to believe and does believe that heretofore the Plaintiff, Clinton E. Smith has sold a portion of such materials for large sums of money and although often requested to do so has failed and refused and still fails and refuses to account to this defendant for same.'

The record does not show that any pleading was thereafter filed by plaintiff, but we do find the following paragraph contained in plaintiff's first supplemental petition, which was filed some forty days prior to the amended answer, to-wit: 'VI. Plaintiff denies all and singular the allegations contained in the 2nd, 3rd and 4th subparagraphs of the paragraph numbered IV, of Defendants' First Amended Original Answer, and further says that Defendants' cause of action, if any he has, as therein alleged, accrued more than four years before the commencement of this suit, and the same is barred by limitation; and this he is ready to verify.'

The record does not show that any exceptions to the pleadings were ever called to the attention of the trial judge, or that he at any time made any rulings upon the pleadings before hearing the evidence. Therefore, under the provisions of Rule 90, T.R.C.P., every defect, omission or fault in the pleadings, either of form or substance, is deemed to have been waived by the party seeking a reversal.

The trial was to the court without the intervention of a jury and resulted in judgment in favor of Clinton E. Smith against both defendants, Foran and King, upon said note for the sum of $1635.48, and against Foran only, in the sum of $247.76. Smith took a non-suit as to his claim against both defendants for the sum of $358.03 and no recovery was had thereon. The judgment by necessary implication denied defendants any recovery upon their cross-action. From that judgment Lester Foran alone has prosecuted this appeal.

At appellant's request, the trial court made and filed findings of fact and conclusions of law, to-wit:

'Findings of Fact.

'I. I find that on December 20, 1944, the Defendants, Lester Foran and Rodney S. King, executed and unconditionally delivered to the Plaintiff, Clinton E. Smith their one certain promissory note in the principal sum of Twelve Hundred Dollars ($1200.00), with interest at the rate of six per cent (6%) per annum, from date of maturity until paid, payable six (6) months after date, and further providing for the payments of an additional ten (10) per cent of principal and interest if said note was placed in the hands of an attorney for collection in the event suit was brought thereon; and that said note was made payable to order Gulf Star Foundries, a trade name under which the Plaintiff, Clinton W. Smith, was still doing business.

'II. I find that no payments have been made on said note and the name is a valid, subsisting obligation of the Defendants, and that they are indebted to the Plaintiff in the full amount of principal, interest and attorney's fees, provided for in said note.

'III. I find that said note was placed in the hands of Neal B. Marriott, an attorney, for collection, and that this suit was brought in part to force the collection of said note.

'IV. I find that the delivery of said note was not conditioned on the sale of the galvanizing company by the Defendants as alleged.

'V. I find that the Defendant, Lester Foran, is justly indebted to the Plaintiff in the sum of Two Hundred Forty-seven and 76/100 Dollars ($247.76) on open Account.

'VI. I find that the cause of action asserted by the Defendant Lester Foran and jointly by the Defendant Rodney S. King in their 2nd, 3rd and 4th sub-paragraphs in paragraph IV, in the First Amended Answer of the Defendant Lester Foran was not asserted or alleged in the original answer of the defendants, and that the cause of action, if any, was based upon a written contract, dated November 24, 1944, and performable on or before March 31, 1945, and that the said cross-action first asserting said cause of action was not filed until June 20, 1949, more than four years after the cause of action as therein asserted arose.

'Conclusions of Law.

'I. I conclude that Plaintiff is entitled to judgment against Lester Foran and Rodney S. King in the amount of said note described in Plaintiff's Petition, with interest, together with his attorney's fees in the amount of ten per cent (10%) of the principal and interest as provided in said note.

'II. I conclude that Plaintiff is entitled to judgment against Lester Foran for his debt upon account in the sum of Two Hundred Forty-seven and 76/100 Dollars ...