Glasco v. Frazer, 14129
| Decision Date | 18 November 1949 |
| Docket Number | No. 14129,14129 |
| Citation | 225 S.W.2d 633 |
| Parties | GLASCO et al. v. FRAZER. |
| Court | Texas Court of Appeals |
Ben D. Clower and Harry Rovenger, Dallas, and Ramey, Calhoun, Marsh, Brelsford & Sheehy, Tyler, for appellants.
E. A. Nesbitt, Dallas, for appellee.
Appellee's suit was for alleged amount of monthly salary due plus a bonus on number of certain articles manufactured or produced. On trial to the court, judgment was rendered in his favor for $2,810, from which defendants L. M. Glasco, individually, and operating under the name of Merry-Go Sales Company, also Jay-Bee Manufacturing Company, a corporation, have duly prosecuted this appeal.
Appellee contends that his action is one arising under Rule 185, Texas Rules of Civil Procedure, old Article 3736, R.C.S., as amended in 1931: conforming to the provisions of said Rule in his verification of pleading, attachment of sworn account, etc., and claiming its benefits at the trial. Defendants, on the other hand, strenuously assert that the claim in question is one entirely outside the purview of Rule 185, a proviso of which makes the sworn account prima facie evidence of the indebtedness claimed; and that without its benefit there was no sufficient evidence in support of claim.
Petitioner's action in substance was upon a verbal contract with L. M. Glasco, individually, as agent of the Merry-Go Sales Company and duly authorized agent and president of Glasco Manufacturing Company, whereby plaintiff was to assume technical supervision with reference to production of a type of playground apparatus known as 'Merry-Go,' an article then being produced by defendants in accordance with plans and specifications furnished by Glasco, along with dies, tools, material, and operating personnel; all under direct management and control of defendant last named; that plaintiff was to receive for such advisory services the sum of $350 per working month plus a royalty of $1 per playground unit produced from date of contract, November 15, 1945, to December 25, 1945, within which time 1,760 units were produced 'as shown on the invoice and sworn account attached hereto and made a part hereof.' It was further alleged that by agreement his employment at the same monthly compensation was extended to February 15, 1946; that during course of supervision, he pointed out to defendants various defects in plans, specifications, and tool design, suggesting improvements to lessen cost of production, but to no avail. Defendant Glasco pled in effect that Glasco Manufacturing Company had been a corporation owned by himself and family; that the understanding with plaintiff was that the latter would take over the work of general management of the company, receiving salary and commission on articles manufactured; conditioned, however, on ability of Frazer to make a success of the business, which he was unable to do; alleging nonperformance by plaintiff of any work for which he became entitled to compensation; denying that he, either individually or as agent, guaranteed to pay plaintiff for any services except on above contingency. His pleading was sworn to, viz.: 'I, L. M. Glasco, defendant in the above entitled and numbered cause, acting for himself and for Merry-Go Sales Company, a trade name, say that the foregoing allegations are true.'
Plaintiff's pleadings were verified in accordance with Rule 185, Texas Procedure, 'Suit on Sworn Account,' with statement attached, viz.:
In its inception, old Art. 3736, R.S., creating a rule of evidence, was limited to an action or defense based upon open account. In 1931, Art. 3736, Vernon's Ann.Civ.St now Rule 185, Texas Procedure, was broadened by amendment so as to read: '* * * or other claim or claims for goods, wares and merchandise, including claims or suits for liquidated money demands based upon written contracts or based on business dealings between the parties, or for personal service rendered, on which a systematic record of said account has been kept, * * *.' While old Art....
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