Manes Const. Co., Inc. v. Wallboard Coatings Co., Inc., 799

• Decision Date: 20 June 1973
• Docket Number: No. 799,799
• Citation: 497 S.W.2d 334
• Parties: MANES CONSTRUCTION COMPANY, INC., Appellant, v. WALLBOARD COATINGS COMPANY, INC., et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 334

497 S.W.2d 334

MANES CONSTRUCTION COMPANY, INC., Appellant, v. WALLBOARD COATINGS COMPANY, INC., et al., Appellees.

No. 799.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

June 20, 1973.

Rehearing Denied July 18, 1973.

T. Turner Pope, Kamp, Laswell & Pope, Houston, for appellant.

John A. Cavin, Ross, Banks, May, Cron & Cavin, George T. Bass, Houston, for appellee.

TUNKS, Chief Justice.

This is an appeal from a judgment granting a recovery of money paid to an assignor of accounts receivable after the assignor's debtor had notice of the assignment. The facts which gave rise to this litigation are as follows. Appellant Manes Construction Company, Inc. (Manes) and its sister corporation Westward Builders, Inc., as general contractors, began construction of three apartment projects in Houston, Texas. Manes contracted with American Drywall & Supply Company (American) a subcontractor, to do the sheetrock work in each project. In January 1969 American assigned its accounts receivable to appellee National Gypsum Company (National), its principal supplier, to secure past and future open account sales . A financing statement was executed and filed with the Secretary of State. In July 1969 Manes received actual notice, by telephone and by letter, that the assignment had been made by American. In apparent recognition of this assignment, Manes made several payments on the subcontract work with checks which were made jointly payable to American and National. Other checks, however, were not made jointly payable, but rather were direct payments to the subcontractor American.

In October 1969 Manes, American and another of American's suppliers, Wallboard Coatings Company, Inc. (Wallboard), entered into an agreement in which Manes promised to make payments to American with checks made jointly payable to American and Wallboard. In consideration of this Wallboard agreed to supply construction materials costing $7,110.30 to American. Wallboard was not told by either Manes or American that American had already assigned its accounts receivable to National.

In April 1970, Manes, having completed all three apartment projects, determined that it had retainage in its possession in the amount of $7,110.30. At that time, neither Wallboard nor National, the material suppliers for Manes's subcontractor American, had been paid by American for the materials American had purchased. Manes sent Wallboard a check in the amount of $7,110.30, which check was made jointly payable to Wallboard, American and National.

Wallboard filed suit against American and Manes to collect the $7,110.30 owed to Wallboard by American. Manes answered by way of interpleader and made National a party to the suit. National answered by way or cross-action against American and Manes to collect $49,062.71 (later reduced to $45,056.11 because of a credit to the account) owed to National by American.

Trial was to the court without a jury. Judgment was granted to Wallboard for the $7,110.30 tendered into court by Manes as interpleader. National obtained a judgment against Manes in the amount of $45,056.11. In the interest of clarity, other aspects of the judgments rendered will not be mentioned.

By this appeal Manes has attacked only the judgment rendered against it in favor of National. Although a statement of facts has been filed with this Court, no findings of fact or conclusions of law were requested by Manes. Consequently the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968).

By its first two points of error, Manes contends that the trial court erred in granting judgment to National based on its security interest (the assignment of American's accounts receivable) while at the same time granting judgment to Wallboard for the funds tendered into court by Manes. Appellant's theory is that the granting of judgment to Wallboard presupposes a finding that National did not have a perfected security interest in American's accounts receivable . Otherwise the funds tendered into court would have been granted to National. This contention is based on a misconception of the importance of Perfecting a security interest. Proper perfection of a security interest is of significance only in determining priorities among conflicting security interests. Tex.Bus. & Comm.Code Ann. sec. 9.312 (1968),...