Hilton v. Musebeck Shoe Co., Inc.

• Decision Date: 30 January 1974
• Docket Number: No. 12099,12099
• Parties: J. C. HILTON, Appellant, v. MUSEBECK SHOE COMPANY, INC., Appellee.
• Court: Texas Court of Appeals

Page 341

505 S.W.2d 341

J. C. HILTON, Appellant, v. MUSEBECK SHOE COMPANY, INC., Appellee.

No. 12099.

Court of Civil Appeals of Texas Austin.

Jan. 30, 1974.

Rehearing Denied Feb. 20, 1974.

Douglass D. Hearne, Stayton, Maloney, Black, Hearne & Babb, Mert Starnes, Robinson, Felts, Starnes & Nations, Austin, for appellant.

John F. Morehead, Small, Craig & Werkenthin, Austin, for appellee.

PHILLIPS, Chief Justice.

Appellee Musebeck Shoe Company sued appellant on a sworn account. Appellant by a sworn answer stated that the goods and wares allegedly sold him were in fact sold to Hilton Foot-So-Port Shoes, Inc., a Texas Corporation chartered and existing during the period of time alleged by appellee, and still an existing corporation and further that appellant was not liable in the capacity in which he was sued nor liable in any other capacity.

By way of a special exception appellant directed the court's attention to appellee's original petition contending that the exhibit attached to appellee's petition, as Exhibit 'A,' was insufficient and incapable of supporting an action on a sworn account in that the exhibit did not allege with the requisite specificity so as to put appellant on notice of those goods, wares and merchandise allegedly involved.

Trial was to the court sitting without a jury pursuant to which judgment was rendered for appellee for the amount prayed for in the sworn account.

Appellant is before us on two principal points of error either of which, in our judgment, requires a reversal of this judgment.

The trial court erred in concluding as a matter of law that appellant's answer does not conform to the requirements of Rule 185, Texas Rules of Civil Procedure, and in entering judgment for appellee based upon this conclusion.

At trial appellant introduced testimony in support of the allegations in his answer which allegations are stated above. Rule 185, T.R.C.P. provides that a properly pleaded sworn account is to be taken as prima facie evidence 'unless the party resisting such claim shall . . . file a written denial, under oath, stating that each and every item is not just or true . . .' Appellant failed to file such a sworn written denial; however, he filed a verified plea under Rule 93(c), T.R.C.P. which raised the issue that appellee was not entitled to recover in the capacity in which he had sued, or that the defendant was not liable in the capacity in which he had been sued. A denial that a defendant is not doing business under an assumed name or trade name (as was alleged) is required to be verified by Rule 93(o), T.R.C.P. Appellant properly raised both of these affirmative defenses by his verified first amended original answer, but the trial court overruled these defenses and held as a matter of law that his answer failed to conform to the requirements of Rule 185, T.R.C.P. This was error under this Court's decision in Nichols v. Acers Company, 415 S.W.2d 683 (Tex.Civ.App.1967, writ ref . n.r.e.) and in Starlight Supply Company v. Feris, 462 S.W.2d 608 (Tex.Civ.App.1970). Also see McCamant v. Batsell, 59 Tex. 363; Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App.1968, writ ref. n.r.e.) These cases state that the rule which makes a verified account prima facie evidence unless a written denial under oath is filed does not apply to or cover transactions between third parties who are strangers to the transaction.

The court also erred in overruling appellant's special exception. A party seeking to recover on a sworn account is required by Rule 185, T.R.C.P. to plead and prove that he furnished labor or materials and that he has kept a systematic record pursuant thereto. Appellee attempted to comply with this requirement by attaching to its petition copies of what appear to be ledger pages containing dates, invoice numbers, charges and credits. However, at no time did appellee plead or prove, as challenged by appellant's special exception, any invoices or other documents reflecting the basis of the alleged account in terms of type of merchandise, its quantity, cost, or other identifying factors. Nor was there any showing that the prices charged therefor were either agreed upon or were reasonable and customary. United States Insulation Sales Corporation v. Jones-Blair Company, 491 S.W.2d 226 (Tex.Civ.App.1973); Williamsburg Nursing Home, Inc. v. Paramedics, 460 S.W.2d 168 (Tex.Civ.App.1970).

Judgment of the trial court is reversed, and judgment is here rendered that appellee take nothing by this suit.

Reversed and Rendered.

O'QUINN, Justice (concurring).

The judgment of the trial court is subject to reversal upon either of two grounds.

The trial court, after making findings of fact pertaining to reasonable attorney's fees for counsel representing Musebeck Shoe Company, concluded that as a matter of law Hilton's answer did 'not conform to the requirements of Rule 185,' that Hilton was liable to Musebeck for attorney's fees, and that judgment should be entered for Musebeck on the open account and for attorney's fees.

It is immaterial that Hilton's answer did not conform to Rule 185. Under the facts of this case Hilton was a stranger to the transactions between Musebeck Shoe Company and the Hilton Foot-So-Port Shoes, Inc. Musebeck sued Hilton alone and did not join the corporation. Hilton was permitted by the trial court, over objection of Musebeck, to prove that no merchandise was sold to Hilton individually, but that shipping invoices sent by Musebeck, as well as correspondence from Musebeck, were addressed to the corporation and not to Hilton as an individual, and that payments to Musebeck were made by the corporation, not by Hilton. The trial court properly permitted Hilton to make such proof, since Hilton, in his verified answer, pleaded that the goods set forth in Musebeck's petition were not sold to Hilton but were in fact sold to the corporation, and denied that he was liable in any capacity for the corporation's debt.

Musebeck's account, though verified, was hearsay as to Hilton, and as a stranger to the transactions between Musebeck and the corporation, Hilton had the right to controvert and disprove the account without filing a written denial under oath in conformity with Rule 185. McCamant v. Batsell, 59 Tex. 363 (1883); Duree v. Aetna Insurance Co., 66 S.W.2d 764 (Tex.Civ.App. Amarillo 1933, no writ); Eng v. Wheeler, 302 S.W.2d 263 (Tex.Civ.App. San Antonio 1957, writ dsmd.); Robertson v. Rexall Drug and Chemical Company, 410 S.W.2d 200 (Tex.Civ.App. Fort Worth 1966, no writ); Nichols v. Acers Company, 415 S.W.2d 683 (Tex.Civ.App. Austin 1967, writ ref. n .r.e.); Copeland v. Hunt, 434 S.W.2d 156 (Tex.Civ.App. Corpus Christi 1968, writ ref. n.r.e.); Sampson v. Apco Oil Corporation, 476 S.W.2d 430 (Tex.Civ.App. Amarillo 1972, no writ); Compression, Inc. v. James and Dilda, 481 S.W.2d 458 (Tex.Civ.App. Houston 1st 1972, no writ).

It was error for the trial court to enter judgment against Hilton individually on the account and to hold him for attorney's fees incurred by Musebeck. Hilton's proof under his pleadings was uncontradicted that he transactions sued upon were between Musebeck and the corporation and not between Musebeck and Hilton.

On appeal Hilton also urges that there was no evidence introduced to support the judgment. The record does not disclose that Musebeck offered the account in evidence. Attaching a purported verified account to plaintiff's petition did not constitute proof. The account must be offered in evidence....