Hercules Exploration, Inc. v. Halliburton Co.
| Decision Date | 01 September 1983 |
| Docket Number | No. 13-82-214-CV,13-82-214-CV |
| Citation | 658 S.W.2d 716 |
| Parties | HERCULES EXPLORATION, INC., Andrew Weaver & Thomas A. Myers, Appellants, v. HALLIBURTON COMPANY, Appellee. |
| Court | Texas Court of Appeals |
John T. Dailey, Strickland & Dailey, Patrick V. Strong, San Antonio, for appellants.
Todd Hunter, Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellee.
Before BISSETT, UTTER and GONZALEZ, JJ.
This is an appeal from a judgment rendered in a suit on sworn account, wherein Halliburton Company was plaintiff and Hercules Exploration, Inc., Andrew Weaver and Thomas A. Myers were defendants. Following a jury trial, judgment was rendered that plaintiff recover from defendants, jointly and severally, the sum of "$32,001.27, with interest thereon as to Hercules Exploration, Inc. at the rate of 6% per annum from October 25, 1976 until date of judgment and thereafter at the rate of 9% per annum, together with reasonable attorney's fees as to Hercules Exploration, Inc. in the sum of $6,288.75, with interest thereon at the rate of 9% per annum from date of judgment until paid, together with all costs of court in this behalf expended."
All of the defendants have appealed. The defendants in their first, second, third and fourth points of error, attack the judgment on the ground that plaintiff's suit was barred under the provisions of Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), the two-year statute of limitations. Plaintiff argues that the suit was not barred by that statute, and that Tex.Rev.Civ.Stat.Ann. art. 5527 (Supp.1982-83), the four-year statute of limitations, is applicable.
Halliburton, in its duly verified original petition, its trial pleading, alleged that it, at the request of Hercules, provided the latter with "certain goods, wares, services and merchandise or rendered personal services for labor done or material furnished." In the alternative, it was alleged that its suit was based upon "labor performed and material furnished on the theory of quasi contract or quantum merit." It was further alleged that the suit was founded on an "oral or written contract." Attached to the petition and incorporated therein were invoices and work tickets describing the materials and services furnished and the labor performed. The invoices are dated August 20, 1976 and August 24, 1976. Such materials, services, and labor were furnished and rendered in connection with a "Kiel Frac," of Hamilton No. 1 well, in Dimmit County, Texas. The liability of Weaver and Myers was claimed under a certain "Letter of Guaranty," signed by them on March 11, 1976, addressed to Halliburton, wherein they guaranteed payment of Hercules' accounts up to $50,000.00. Suit was filed on October 23, 1979.
Articles 5526 and 5527 were both amended by Acts of the 66th Legislature. Such amendments became effective on August 27, 1979.
Prior to amendment, Article 5526, in pertinent part, provided:
"There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:
* * *
* * *
4. Actions for debt where the indebtedness is not evidenced by a contract in writing.
5. Actions upon stated or open accounts other than such mutual and current amounts as concern the trade of merchandise between merchant and merchant, their factors or agents ... and limitation shall run against each item from the date of such delivery, unless otherwise specially contracted."
The amendment to Article 5526 deleted Sections 4 and 5 of the statute as the same existed prior to August 27, 1979, and provided for a two-year limitations within which to file suits in six (6) separate situations, none of which are applicable to the case at bar. The effect of the amendment was to abolish the two-year statute of limitations within which to bring suit "for actions for debt where the indebtedness is not evidenced by a contract in writing," and where the action was upon "stated or open accounts."
Prior to amendment of Article 5527, the statute, in pertinent part, provided:
* * *
* * *
As amended, article 5527, in pertinent part, reads:
* * *
* * *
Hercules, Weaver and Myers argue that the invoices and work tickets do not, in fact, constitute contracts in writing, because they do not set out specifically the obligations of the parties, and that the obligation of Hercules to pay for the items set out therein rests, at least in part, upon parol evidence, and that they reveal "only a listing of services" alleged to have been provided by Halliburton and charged to Hercules. It is further contended that Halliburton, by pleading that its suit is "founded on an oral or written contract," has judicially admitted that "such suit is not wholly based upon a contract in writing. It is also argued that the invoices and work tickets were not introduced in evidence for "all purposes," but were introduced for the limited purpose of showing that certain charges were made to Hercules by Halliburton, and that in order to prevail, Halliburton, of necessity, had to rely on parol evidence to establish any liability for the charges reflected in the invoices. They insist that the cause of action is barred by Article 5526.
Halliburton argues that Article 5527, the four-year statute of limitations, before and after its amendment, controls. Consequently, it says that since it is conclusively shown that suit was filed within four years from the date its cause of action accrued that it was not barred by any statute of limitation. It first asserts that as a result of the 1979 amendments, Sections 4 and 5 of Article 5526 were eliminated, and Article 5527, insofar as this appeal is concerned, was amended to cover only "actions for debt," which amendments "showed the concern of the legislature to apply the four-year limitations to actions for debt and actions founded upon writings." Next, Halliburton contends that "the invoices, delivery tickets and letter of guaranty represent a contract in writing and action for debt." It further contends that the amendments, from and after August 27, 1979, "placed all actions for debt under the four-year statute." Finally, it is argued that the invoices, delivery or work tickets, and the letter of guaranty, all of which were attached to and made a part of Halliburton's petition and were introduced in evidence at the trial, are sufficient to show that Hercules' became obligated to pay for the services and materials furnished and labor performed, and that the letter of guaranty was sufficient to hold Weaver and Myers liable for payment of Hercules' debt.
Under the express terms of both Article 5526 and 5527, limitations begins to run when the cause of action accrues; by "cause of action" is meant the right to institute suit. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716, 721 (1946); Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926 (1912); Jones County v. Moore, 4 S.W.2d 289 (Tex.Civ.App.--Eastland 1928, writ ref'd).
A judicial admission is a formal act, done in the course of judicial proceedings, which dispenses with the production of evidence and takes the matter out of the domain of proof. It is not evidence, but is a substitute for evidence. First National Bank in Dallas v. Kinabrew, 589 S.W.2d 137 (Tex.Civ.App.--Tyler 1979, writ ref'd n.r.e.); Valdes v. Moore, 476 S.W.2d 936 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.).
The leading case on the subject is United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.--San Antonio 1951, writ ref'd). It sets out five requirements of a judicial admission. They are: the admission was: 1) made in the course of a judicial proceeding; 2) contrary to an essential fact for the party's recovery; 3) deliberate, clear and unequivocal; 4) related to a fact upon which judgment for the opposing party could be based; and 5) enforcing the admission would be consistent with public policy."
Unless the statements asserted to be a judicial admission meet all of the requirements set out in United States Fidelity & Guaranty Co. v. Carr, supra, it is not a judicial admission. Mendoza v. Fidelity & Guaranty Insurance Underwriters, Inc., 606 S.W.2d 692 (Tex.1980). The allegation that "this suit is founded on an oral or a written contract" does not meet all of such requirements. It does not constitute a judicial admission that the suit is not wholly based upon a contract, as argued by Hercules, Weaver and Myers. It is not a deliberate, clear and unequivocal statement of a fact, but is nothing more than a conclusion based on the facts alleged in the petition and the exhibits which were incorporated therein.
In the case of International Printing Pressmen and Assistant's Union of North America v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1946), the Supreme Court of Texas had before it the question of whether plaintiff's cause of action was a tort action and, consequently barred by limitations under Article 5526, or whether the suit was founded upon a contract in writing within the meaning of Article 5527. In holding that the suit was founded upon a contract in writing, and was not barred by the two-year statute of limitations since suit was filed more than two years but less than four years after the cause of action accrued, the Court, on page 736, of the published opinion, said:
...
To continue reading
Request your trial
-
Umlic Vp LLC v. T & M Sales
...fact are to be submitted to the jury; questions of law are the province of the court. Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 724 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.); Barton v. Davis, 441 S.W.2d 299, 301 (Tex.Civ.App.-El Paso 1969, writ ref'd n.r.e.). An......
-
Varel Mfg. Co. v. Acetylene Oxygen Co.
...writ ref'd n.r.e.) (monthly invoices showing party's share of drilling expenses); Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 721-22 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.) (invoices and work tickets describing materials and services furnished and the labor per......
-
Federal Deposit Ins. Corp. v. Attayi
...See, e.g., Straus-Frank Co. v. Hughes, 138 Tex. at 53-54, 156 S.W.2d at 520-21; Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 724 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.); Blount v. Westinghouse Credit Corp., 432 S.W.2d 549, 553 (Tex.Civ.App.--Dallas 1968, no writ......
-
Lawson-Avila Const., Inc. v. Stoutamire
...ref'd n.r.e.). It is not necessary to submit an issue regarding a pure issue of law. Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 724 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). Moreover, appellant, in objecting to the charge, further implied that the appellant's n......