King Const. Co. v. Flores

• Decision Date: 28 June 1962
• Docket Number: No. 13913,13913
• Citation: 359 S.W.2d 919
• Court: Texas Court of Appeals
• Parties: KING CONSTRUCTION COMPANY, Appellant, v. Hunter FLORES, d/b/a Freeport Machine & Boiler Shop, Appellee.

Page 919

359 S.W.2d 919

KING CONSTRUCTION COMPANY, Appellant, v. Hunter FLORES, d/b/a Freeport Machine & Boiler Shop, Appellee.

No. 13913.

Court of Civil Appeals of Texas, Houston.

June 28, 1962.

On Remittur July 12, 1962.

Rehearing Denied Sept. 13, 1962.

Ellis F. Morris, Houston, for appellant.

Wiley Thomas, Angleton, for appellee.

BELL, Chief Justice.

Appellee sued appellant, in form, on a sworn account to recover for materials, equipment and labor furnished and for the rental value of certain equipment. He also sued for attorney's fees. Trial was to a jury, and on the jury verdict judgment was rendered for appellee in the amount of $4,534.55. This amount included attorney's fees of $1,295.00.

Basically three points of error are asserted. First, it is contended that except for the sum of $234.25 there is no evidence, or alternatively there is insufficient evidence to show the materials, labor and equipment were furnished appellant because there is no showing of authority in the person who allegedly made the arrangements for them. Second, it is contended the court erred in allowing any attorney's fees because suit was for rental of equipment or, alternatively, the amount found by the jury was so against the greater weight and preponderance of the evidence as to be clearly wrong. Third, the argument of appellee's counsel was inflammatory, erroneous and harmful in the respects we will later notice.

We hold there was evidence, and it was sufficient, to support the jury's answers because there is sufficient evidence that the equipment was rented, the labor done, and the material furnished at the instance of an authorized representative of appellant.

King Construction Company is a partnership composed of George Caliva and Anthony Caliva. It had a contract to build a sewer treatment plant for the City of Freeport. It was in connection with this job that the indebtedness was incurred. The indebtedness sued for was created by reason of appellee furnishing the following:

1. Use of 190 feet of 8 'I' beams at $133.00 per month for 10 months for a total rental of $1,330.00.

2. Use of a dragline, dragline bucket and claim shell bucket for 2 weeks at $500.00 per week, or a total rental of $1,000.00.

3. Use of a 3/4 yard bucket, a 6"' pump and a 6"' suction hose for 3 weeks, for a total rental of $412.00.

4. Labor and material in the total amount of $491.50.

We have separated the various classes of items because of appellant's contention with regard to attorney's fees.

The bookkeeper for appellee testified that as the various charges were incurred she sent appellant invoices at its office at 3818 Chaffin St., Houston, Texas. The first invoice was dated October 5, 1959 and the last October, 1960. There were 13 invoices. Appellant admitted by pleading it owed $100.00 rental of a dragline for one day represented by invoice 3096 dated October 5, 1959. This invoice was actually for a total of $1100.00. Also he admits owing $134.25 shown on Invoice 3126 dated November 11, 1959. This was for rental of a 3/4 yard clam shell bucket. There were two other items on the same invoice aggregating $277.75. The bookkeeper testified no payment at all had been made.

Mr. Kennedy, who at all material times was employed by appellee, testified that about October 5, 1959 he personally handled the moving of a dragline to the construction job of appellant. He had to move it in by barge along a canal. He testified the reasonable rental charge was $500.00 per week and this was agreed to by King Construction Company. He also testified that when they took their machine off the job 'the superintendent on the job' stated he needed the machine, but Kennedy having need of the machine elsewhere moved it. Mr. Kennedy also personally delivered the pump, clam shell bucket and suction hose to the job. These were needed on the job to keep a pit cleaned out. With regard to the I beams Mr. Kennedy testified that Mr. King, the superintendent on the job, came to him and told him they were about to lose the coffer dam and wanted to get all the I beams they could to brace the dam. Mr. Kennedy, a welder, and another man took some I beams to the job and braced the dam. The next morning Mr. King came for more I beams. They were provided. The rental of these beams that went into the coffer dam was shown to be $133.00 per month. Mr. Kennedy testified he talked to Mr. Haganis and Mr. King of appellant Company about the rental of the dragline. Appellant's motion for continuance shows Haganis was its employee connected with the job.

Mr. Flores also testified he talked to Haganis about rental of the dragline.

Other evidence showed appellant never complained about the invoices sent it or any charge shown on them until suit was filed though evidence does show they never paid anything on the account.

We think that appellant's admission that it owed $100.00 for use of the dragline that was furnished by appellee on October 5, 1959, the commencement date of the account, is an admission that whoever rented it had authority to do so. Too, Mr. Kennedy testified Mr. King, the superintendent on the job, made the agreement for the rental and used it on the job. Also, the I beams were contracted for by Mr. King and were installed in the coffer dam on the job. With regard to rental of the 3/4 yard dragline bucket rented and used on the job appellant admits it owes the amount charged. On the same invoice were charges made for rental of a pump and suction line. The invoice was sent to appellant and no complaint was made of the charges. It seems to us that where, as here, an account for a job is opened by one shown to have authority to open it and invoices are sent thereafter by the particular creditor for other things furnished for the same job and the debtor over the period of nearly a year raises no question about the charges, a prima facie case of authority is established. After the dragline was rented on October 5, 1959, invoices for all other items furnished were sent appellant and at no time did it communicate to appellee any complaint about any of the charges. Too, it seems to use the superintendent on the job would have authority to contract for those things reasonably necessary in carrying on the job. Too, here it is shown the things charged for were actually used on the job with knowledge of the superintendent.

Appellee having made out a prima facie case of authority of the agent to contract for the items shown, the jury could consider, in weighing the evidence, the failure of the partners to testify. Certainly there being a prima facie case, it is of real significance that the partners did not even testify denying what has been proven. Such failure is evidence of the truth of facts established prima facie from other testimony. Bayon Drilling Co. of Texas v. Baillio, Tex.Civ.App., 312 S.W.2d 705, ref., n. r. e.

Appellant next complains of various parts of the argument of appellee's counsel and that such argument was harmful. The parts complained of are:

1. 'this is a case where a hot shot in Houston, operating in in partnership under the name of King Construction Company, come down here to Brazoria County, to the City of Freeport, and sign a contract for $337,000.00 to build a sewerage disposal plant.'

2. 'Mr. Holder's pleading show you that they run over time, they owe $13,000.00 in liquidated damage to the City and they owe so many people for much services that were performed down there, that the City of Freeport and the Bonding Company have put the money in the courthouse, and then this lawyer, I don't know whether he is associated with King Construction Company or the Insurance Company, that he purports to represent, comes down here and tells you that Mr. Kennedy is lying.'

3. 'He tells you that Hunter Flores, who has been in Brazoria County and Freeport, operating a legitimate business for years and years is dishonest in this suit.'

4. 'Yes, sir, Mr. Morris, you can anticipate right that I am going to ask you where are the Cliva's, where is Anthony Cliva, where is George Cliva, where is Haginas, where are the bookkeepers from King Construction Company. The Sheriff of Harris County can't find them.'

5. 'They are trying to beat this man out of his money, * * * I know that I shouldn't get worked up over a few accounts and a bunch of money, * * * I couldn't bring it on * * * why they picked up this dragline, but this insurance company lawyer did * * * they got word that Cliva was not going to pay their bill, they were going to beat them out of their money, they worried about it, isn't that what Mr. Kennedy said, in so many...