Intercity Investments Co. v. Plowman, A-B
Decision Date | 08 October 1976 |
Docket Number | A-B,No. 17751,17751 |
Citation | 542 S.W.2d 260 |
Parties | INTERCITY INVESTMENTS CO., Appellant, v. Chester PLOWMAN d/b/aetter Striping Company, Appellee. |
Court | Texas Court of Appeals |
This is an appeal from a judgment and award of attorney's fees against two individuals and a limited partnership and its general partner in a suit on a sworn account. The appeal rests primarily on the grounds (1) that there is no evidence that the entity is in fact a limited partnership and no cause of action was proved against it, (2) that the limited partnership was not a party to the suit, and (3) that the judgment against the individuals was not properly based on a quantum meruit theory because the evidence reflects the existence of an express contract between plaintiff and the limited partnership.
A-Better Striping Company, a sole proprietorship owned by Chester Plowman, by his first amended original petition sued Intercity Investments Company, a Texas corporation, Leo F. Corrigan, Jr., and Edwin B. Jordan, d/b/a Ector Square Apartments, upon a sworn account for materials and services furnished for the repair of an asphalt paved area at the Ector Square Apartments complex.
The defendant, 'Intercity Investments Company, a Texas corporation,' answered, stating under oath that it was not doing business under an assumed name or trade name as alleged, together with denials of the account.
By supplemental pleadings plaintiff alleged that Leo F. Corrigan, Jr., and Edwin B. Jordan are a partnership, doing business as Intercity Investments, which operates and manages the Ector Square Apartments. Ector Square Apartments is owned by Leo E. Corrigan, Jr ., and Edwin B. Jordan. Plaintiff also alleged that Jim Bush is the manager of Ector Square Apartments with express or implied authority to contract for same and that he requested the plaintiff to perform the repair work. It is further alleged that Jim Bush was employed by Intercity Investments to manager these apartments for the owners; and that Leo F. Corrigan, Jr., Edwin B. Jordan, and Joe B. Turner, Jr., under the name of Intercity Investments, are the agents for the owners of Ector Square Apartments, Edwin B. Jordan and Leo F. Corrigan, Jr.
The defendants, by their first supplemental answer filed in response to plaintiff's second supplemental petition, deny (1) any additional allegations of fact set forth in plaintiff's second supplemental petition, and (2) the allegations that Corrigan and Jordan are doing business as Intercity Investments as alleged.
The judgment provides that the plaintiff recover of and from, (Emphasis supplied.)
The case was tried without the aid of a jury. No findings of fact and conclusions of law were requested or filed.
Notice of appeal was given in the following language: 'COME NOW the Defendants in the above entitled and numbered cause . . ..' (Emphasis supplied.)
Intercity Investments Company, Leo F. Corrigan, Jr., and Edwin B. Jordan are recited as being principals in the appeal bond, but only signator was 'Intercity Investments Co.', and obligation stated by the bond was likewise to be that of 'Intercity Investments Company'. No motion to dismiss the appeal on account of defective bond was filed. It is not clear whether Intercity Investments, a partnership (against whom the judgment was decreed) is appellant, or whether it is Intercity Investments, a Texas corporation, which is appellant. Had there been presented some character of motion challenging the appeal bond a proper procedure would be that outlined in Owen v. Brown, 447 S.W.2d 883 (Tex.Sup.,1969).
In any event the appeal is also presented by Leo F. Corrigan, Jr. and Edwin B. Jordan. The matter of what other appellant is before us will be discussed in the body of the opinion.
Judgment is modified and, as modified, affirmed.
Appellants, by their points of error Nos. 1 and 2, assert error of the trial court in granting judgment against Intercity Investments Company, a limited partnership, because there is no evidence that this entity is a limited partnership and no cause of action was proved against it.
By their points of error Nos. 3--6, error is alleged because the partnership was not a party to the suit; it was error to grant judgment against Edwin B. Jordan, as a general partner, because the partnership was not a party to the suit; no cause of action was alleged or proved against Jordan as an individual; and the awarding of attorney's fees was error for the same reasons.
Appellants cite no authority in support of their first 6 points of error.
The judgment recites: 'ON THIS THE 9th day of June, 1975, came on to be heard the above entitled and numbered cause, no jury having been requested, All parties having announced ready . . ..' (Emphasis supplied.)
The record reflects that Joe B. Turner is a general partner and the managing partner of Intercity Investments, a limited partnership . He appeared in court and testified that Intercity Investments is a limited partnership, that he and Edwin B. Jordan are general partners, and that this entity manages Ector Square Apartments, which are owned by Edwin B. Jordan and Leo F. Corrigan, Jr., a partnership. There is nothing in the record that would indicate that all the parties did not appear and announce ready. Such a recitation in the judgment is presumed to be true, especially when there in nothing in the record to indicate that such recitation is not true. Roberts v. Roberts, 405 S.W.2d 211 (Tex.Civ.App., Waco, 1966, affirmed Tex., 407 S.W.2d 772).
In Perkins v. Terrell, 241 S.W. 551 (Tex.Civ.App., Amarillo, 1919, ref.) it was held that where the authority of plaintiff to sue for the use and benefit of a necessary party to the suit did not otherwise appear, it will be presumed, in support of judgment for plaintiff, that such party was personally present at the trial directing the suit so far as it affected his interests. See also 4 Tex.Jur.2d (Part 2) (1974 Rev.), App & Err--Civil Cases, Sec. 707, Review--Presumptions Favoring Judgment--Parties.
Ordinarily the function of plaintiff's supplemental petition is to contain special exceptions, general denials, and the allegations of new matter not before alleged by him, in reply to those which have been alleged by the defendant. Rule 80, T.R.C.P.
In his supplemental petition, however, plaintiff alleges that Intercity Investments is a limited partnership. This was not filed until the defendants, by their pleadings, but plaintiff on notice that he probably had no cause of action against this defendant as a corporation. Thus, his supplemental petition was filed in response to defensive pleadings.
If the necessity for thus adding a new party, or for pleading that a prior party is not a corporation, but is a limited partnership, grows out of the facts pled in defendant's answer, then new parties may be brought into the suit by supplemental petition. Harris v. Cain, 41 Tex.Civ.App. 139, 91 S.W. 866 ( ). See also 44 Tex.Jur.2d (1963 Ed.), Sec. 31, Bringing in New Parties--By plaintiff's amended or supplemental pleading.
Defendants did not object to the manner in which the partnership was made a party to the suit.
Although plaintiff in his ...
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