Lawson v. Finance America Private Brands, Inc.

• Decision Date: 05 May 1976
• Docket Number: No. 6508,6508
• Citation: 19 UCCRep.Serv. 1167,537 S.W.2d 483
• Court: Texas Court of Appeals
• Parties: 19 UCC Rep.Serv. 1167 Cleta LAWSON, d/b/a Odessa Marine Sales & Service, Appellant, v. FINANCE AMERICA PRIVATE BRANDS, INC., Appellee.

Page 483

537 S.W.2d 483

19 UCC Rep.Serv. 1167

Cleta LAWSON, d/b/a Odessa Marine Sales & Service, Appellant, v. FINANCE AMERICA PRIVATE BRANDS, INC., Appellee.

No. 6508.

Court of Civil Appeals of Texas El Paso.

May 5, 1976.

Alexander, Lowe & Pratt, Bill Alexander, Benny J. Lowe, Odessa, for appellant.

George M. Kelton, Odessa, for appellee.

OPINION

WARD, Justice.

Finance America Private Brands, Inc. sued Cleta Lawson, D/B/A Odessa Marine Sales and Service, on her two promissory notes payable to the order of GAC Private Brands, inc. Trial was to a jury which resolved factual issues regarding payments and offsets on the notes, and thereafter judgment was entered for the plaintiff for the balance due on the notes. Points on appeal concern deficiencies as to proof of the execution of the notes and proof as to owner and holder rights. We affirm.

Cleta Lawson, under the name of Odessa Marine Sales and Service, sold boats which she purchased from Pipestone Mariner Corporation. GAC Private Brands, Inc. financed the boats and equipment for Cleta Lawson. Each promissory note in dispute is payable on demand to the order of GAC Private Brands, Inc. and is executed by Odessa Marine Sales and Service as maker by Erwin E. Moore, Attorney in Fact. Introduced into evidence along with the promissory notes was an authorization for signature executed by Cleta Lawson and addressed to GAC Private Brands, Inc., which authorized any of its employees in connection with her financing to execute any necessary promissory notes. Appellant filed a sworn answer containing a general denial and plea that the claim was not just and true and that all just and lawful offsets had not been allowed.

By three points of error, the Appellant complains of the admitting into evidence of the two promissory notes for reasons that there was no showing that they had been executed by Erwin E. Moore pursuant to a valid power of attorney, no showing that the notes were executed by any agent of the payee and that there was no showing that the notes were the originals. The Appellant did not file a sworn pleading or affidavit denying the execution of either the promissory notes or the authorization for signature. Rule 93(h), Tex.R.Civ.P. In the absence of such a sworn plea, the instruments shall be received in evidence as fully proved. The notes and authorization for signature were attached to the plaintiff's original petition as exhibits and were offered into evidence. It was not necessary that the plaintiff prove execution of the instruments, notes or authorization. American Fiber Glass, Inc. v. General Electric Credit Corporation, 529 S.W.2d 298 (Tex.Civ.App.--Fort Worth 1975, writ ref'd n.r.e.); 2 McDonald, Texas Civil Practice § 7.29.

In addition, there was ample evidence as to the execution of the notes. In response to interrogatories submitted under Rule 168, Tex.R.Civ.P., the Appellant admitted that Erwin E. Moore was authorized to execute the two promissory notes on her behalf, that she executed the authorization for signature, and that Mr. Moore was an employee of GAC Private Brands, Inc. The promissory notes introduced into evidence appear to have been executed by Mr. Moore and appear to be the originals. The points under discussion are all overruled.

By point of error number two, Appellant complains of the admission of the two notes for the reason that there was no showing that the Appellee was the present holder of the notes in question. The plaintiff, Finance America Private Brands, Inc., alleged that it was formerly GAC Private Brands, Inc., and that the two notes in question were executed and delivered to ...