Hulme v. Levis-Zuloski Mercantile Co.

• Decision Date: 25 May 1912
• Court: Texas Court of Appeals
• Parties: HULME et al. v. LEVIS-ZULOSKI MERCANTILE CO.

Page 781

149 S.W. 781

HULME et al. v. LEVIS-ZULOSKI MERCANTILE CO.

Court of Civil Appeals of Texas. Amarillo.

May 25, 1912.

Rehearing Denied June 22, 1912.

Appeal from Potter County Court; W. M. Jeter, Judge.

Action by the Levis-Zuloski Mercantile Company against W. E. Hulme and others. From a judgment for plaintiff and against defendant J. M. Clayton, said defendant appeals. Affirmed.

C. A. Wright, of Amarillo, for appellant. Gustavus & Jackson, of Amarillo, for appellees.

HALL, J.

Appellee filed this suit against W. E. Hulme and wife, Bertha Hulme, and J. M. Clayton to cover the amount of an open account for goods sold and delivered them, and alleged that the defendant J. M. Clayton agreed to pay for and guaranteed in writing the full payment of the amount. Before the trial, appellee took a nonsuit as to W. E. Hulme and wife, and the cause proceeded to judgment before the court, without a jury, against J. M. Clayton alone.

The first assignment of error challenges the sufficiency of the account, complaining that it is not properly itemized, does not fully give the dates of the purchases of the several items, and is not sufficiently specific in the description of the merchandise set out therein. The questions were raised by exceptions to the pleading and objections to the evidence. The account appears to be one made up entirely of items for use and sale in a millinery establishment, and the technical terms of the millinery business had evidently been used in making it out. Some of the items complained of appear as follows:

                412  1/12  Fancy Feathers      9 00    75
                438  1/12                     12 00  1 00
                

Appellant complains that no ditto was used to show whether said "1.00" charged to said Hulme was for fancy feathers or not, or what kind of fancy feathers, if any at all. We must bear in mind that this is a transaction between seller and purchaser, dealing in a special line of merchandise, and who must be taken to understand the ordinary and usual methods of their business, and to be reasonably familiar with the technical terms used by those engaged in it, as well as general, commercial usage in making out accounts. The law requires that an account must show the items charged therein with reasonable certainty; that is, it should show the nature of the items, the amount thereof, and the date. 1 Stand. Proc. 223. In other words, the items need not be stated with such a degree of particularity as to be readily intelligible to persons not familiar with the business. When measured by the rule above announced, we think the account is sufficient to make clear to parties engaged in the millinery business exactly what was bought, the date, and the amount due.

We do not agree that, where "fancy feathers" are charged, it is necessary in charging subsequent fancy feathers to ditto the two words, especially where the stock number appears upon the account, and doubtless also appears upon the articles delivered.

It is further contended in the second assignment of error, because the affidavit under article 2323, Sayles' Civil Statutes, is dated July 29, 1910, and because the date at the top of the first page of the account is September 27, 1910, that the affidavit precedes the date of the account nearly two months, and was therefore sworn to before the account sued upon was made out. There is no merit in this contention, since the recapitulation of the itemized account, which is made a part of the pleading, shows that the date at the head of the itemized account should be September 27, 1909, instead of September 27, 1910, and is merely a clerical error. The entire account is made up, as clearly appears from its face, of four separate and distinct sales or orders and two credits, and for all practical purposes is sufficient under the statute.

The third assignment of error is that the court erred in overruling the plaintiff's fourth special exception to appellee's petition and attached copy of account. The exception itself is not copied in the brief, and no reference is made to the record where it may be found. In this connection, we call counsel's attention to the following rules: "Statements in a brief are required to expedite and lessen the labors of a court. To each proposition there should be subjoined a brief statement in substance of such proceedings or parts thereof contained in the record as will be necessary and sufficient to explain and support the proposition with a reference to the pages of the record." Rule 31 of Courts of Civil Appeals (142 S. W. xiii); Gallagher & Co. v. Goldfrank, 75 Tex. 562, 12 S. W. 964; I. & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902; Covington v. Sloan, 124 S. W. 690; Weil v. Martinez, 57 Tex. Civ. App. 440, 124 S. W. 116; Sievert v. Underwood, 124 S. W. 721.

In Bynum v. Hobbs, 56 Tex. Civ. App. 557, 121 S. W. 900, it is said: "The statement made in support of the propositions referring the court to the entire statement of facts is insufficient, and could not be considered." And a further rule applicable and pertinent to appellant's brief and supplemental brief herein is: "Where the statement under an assignment of error refers merely to defendant's bill of exceptions, it is insufficient. It is not a part of the duties of the appellate court to study the bill of exceptions to ascertain whether there is any possible force or merit in the assignment based upon it." San Antonio, etc., Ry. Co. v. Spencer, 55 Tex. Civ. App. 456, 119 S. W. 716; Taylor v. Davidson, 120 S. W. 1018. "The rules require a statement from the transcript and reference to the proper page in support of each proposition. A reference to the transcript merely is not sufficient, and propositions thus submitted will not be considered. The court cannot undertake to search the records for the purpose of supplying defects in the briefs." Kirby Lumber Company v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607, writ of error denied by Supreme Court 101 Tex. 645. "A mere naked reference to a pleading as a whole, with the pages of the record where it is to be found, is clearly not sufficient in assigning error to the ruling of the court in passing upon special exceptions to particular allegations in such pleading. The statement as to such allegations may be brief, but there must be some statement of their substance. A statement consisting of, `See plaintiff's first amended original petition (Tr. pp. 2-10),' is not the statement contemplated by the rule." Broussard v. South Texas Rice Company, 120 S. W. 587; Rusher v. Dallas, 83 Tex. 151, 18 S. W. 333. "Assignments of error based upon the ruling of the court in admitting or rejecting...