Goodman v. Art Reproductions Corp.

• Decision Date: 01 November 1973
• Docket Number: No. 18141,18141
• Citation: 502 S.W.2d 592
• Parties: Benny GOODMAN, Appellant, v. ART REPRODUCTIONS CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 592

502 S.W.2d 592

Benny GOODMAN, Appellant, v. ART REPRODUCTIONS CORPORATION, Appellee.

No. 18141.

Court of Civil Appeals of Texas Dallas.

Nov. 1, 1973.

Supplemental Opinion Nov. 8, 1973.

Rehearing Denied Nov. 29, 1973.

Benny Goodman, pro se.

Harold E. Vanberg, Jr., Law Office of David Witts, Dallas, for appellee.

BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted therefor.

Benny Goodman appeals from a summary judgment rendered against him on a sworn account. He challenges the correctness of the summary judgment on the ground that he had alleged under oath that the merchandise had not been delivered to him. Appellee contends that appellant's answer is insufficient to overcome the prima facie case made by the sworn account. We agree with this contention.

Texas Rules of Civil Procedure 185, as amended effective January 1, 1971, is in pertinent part as follows:

'When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including and claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, On which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, 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 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; * * *. When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be .' (Italics ours.)

Tex.R.Civ.P. 93(k) was amended also, effective January 1, 1971, to harmonize with the amended Rule 185.

Several courts of civil appeals have held that Rule 185 as amended must be strictly followed, that 'the failure to file such an answer is fatal,' and that the courts 'have been extremely exacting in the nature of the language used in sworn denials of verified accounts.' See McDonald v. Newlyweds, Inc., 483 S.W.2d 334, 337 (Tex.Civ.App.--Texarkana 1972, writ ref'd n.r.e.); Duncan v. Butterowe, Inc., 474 S.W.2d 619, 620 (Tex.Civ.App.--Houston 14th Dist . 1971, no writ); Solar v. Petersson, 481 S.W.2d 212, 215 (Tex.Civ.App.--Houston 14th Dist. 1972, no writ).

Appellant argues that appellee waived any defects in appellant's answer by not complying with Tex.R.Civ.P. 90. This rule by its express terms provides only for waiver by 'the party seeking reversal.' Its purpose is to prevent reversal on technical grounds. When in a suit on sworn account the defendant fails to deny the account under oath in the language prescribed by Rule 185, he cannot escape the consequences of such failure by resorting to Rule 90 and saying the plaintiff waived the right to assert the inadequacy of his denial. Butler, Williams & Jones v. Goodrich, 306 S.W.2d 798, 802 (Tex.Civ.App.--Houston 1957, writ ref'd n.r.e.). But see Texas Indemnity Ins. Co. v. Watson, 207 S.W.2d 99, 100 (Tex.Civ.App.--Galveston 1947), rev'd on other grounds, 147 Tex. 40, 210 S.W.2d 989 (1948).

Although his briefs contain no point of error directing our attention to the matter, as required by Tex.R.Civ.P. 418, appellant argues that the record contains neither pleading nor proof that a systematic record has been kept of the account sued on. We do not agree with this contention. First, with respect to the failure of appellee to plead this fact, appellant must be held to have waived the right to object to this and other defects, if any, in appellee's pleading by his failure to point them out by motion or exception in writing brought to the attention of the trial judge, as required by Tex.R.Civ.P. 90. Wilson v. Clarke Floor Machine Co., 380 S.W.2d 768, 769 (Tex.Civ.App.--Eastland 1964, no writ).

We next consider whether the record shows that this account was based upon a systematic record. The account attached to the petition consists of copies of invoices and a recapitulation sheet. While the photographic reproductions of some of the pages are not as readable as we would prefer, appellant does not contend that they failed to apprise him of the nature and details of the account. In our opinion, the account as a whole shows, at least prima facie, that a systematic record was kept of the dates of sales, description of the items sold, and the prices thereof. Wilson v. Clarke Floor Machine Co., 380 S.W.2d 768, 770 (Tex.Civ.App.); Williamsburg Nursing Home, Inc. v. Paramedics, Inc., 460 S.W.2d 168, 169 (Tex.Civ .App.--Houston 1st Dist. 1970, no writ). Compare Morrow v. McDaniel, 70 S.W.2d 329, 332 (Tex.Civ.App.--Beaumont 1934, no writ).

We hold, therefore, that under the record presented to us...