Marr v. Craddock

• Decision Date: 07 July 1966
• Docket Number: No. 223,223
• Citation: 406 S.W.2d 278
• Parties: Robert A. MARR, Appellant, v. O. W. CRADDOCK, d/b/a Craddock And Company, Agents, Appellee. . Tyler
• Court: Texas Court of Appeals

Page 278

406 S.W.2d 278

Robert A. MARR, Appellant, v. O. W. CRADDOCK, d/b/a Craddock And Company, Agents Appellee.

No. 223.

Court of Civil Appeals of Texas Tyler.

July 7, 1966.

Rehearing Denied Sept. 22, 1966.

Hollie G. McClain, Gilmer, for appellant.

M. D. Carlock, Winnsboro, for appellee.

DUNAGAN, Chief Justice.

This is a suit on an account. The appellee filed this suit in the nature of a sworn account and the appellant denied the account in toto under oath.

The appellee alleged in part that at the special instance and request of the appellant, founded on business dealings between the parties, he issued insurance policies and rendered services to appellant in the regular course of business on open account; that the appellant became bound to pay appellee on demand the sum of $281 .94 and though often requested to do so, appellant had not paid said sum or any part thereof. Appellee's petition also contained a plea for attorney's fees in the sum of $75.00, being the total sum of $356.94.

A trial was before the court, without a jury. The trial court rendered judgment for appellee in the sum of $356.94, being the sum of $281.94, the amount of the debt, and the sum of $75.00 attorney's fees, with interest at the rate of six per cent per annum. Appellant appealed.

Appellant has grounded his appeal on the following Points of Error:

'I.

'There is no evidence to show that the appellant owed appellee the sum of $356.94.

'II.

'The appellee did not introduce any competent evidence to show that appellant owed any amount.

'III.

'The appellee did not prove the necessary elements required in order for him to recover.'

In his brief the appellant contends that there was no proof of delivery of the insurance policy (subject of suit) nor was there any proof that there was an agreement as to price, or that the account was just.

No findings of fact or conclusions of law were filed by the trial court and the case having been tried to the court without the aid of a jury, we must determine whether there was any evidence to support the judgment and the implied findings of fact incident thereto, and in doing so will consider only the evidence most favorable, and disregard that opposed, to these issues. Boucher Co. v. City Paint & Supply, Inc., 398 S.W.2d 352, (Tex.Civ.App.) 1966, n.w.h.; Daggett v. Neiman-Marcus Company, 348 S.W.2d 796, (Tex.Civ.App.) 1961, writ ref., n.r.e.; Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App.) 1963, n.w.h.; Renfro Drug Co . v. Lewis, 149 Tex. 507, 235 S.W.2d 609; and 23 A.L.R.2d 1114.

Appellee filed a verified account showing that appellant was indebted to him in the sum of $281.94. This verified account was denied under oath by appellant, thus appellee was confronted with the necessity of establishing each and every item of its account by legal and competent evidence. This he failed to do. Boucher v. City Paint & Supply, Inc., supra; Daggett v. Neiman-Marcus Company, supra; J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325, (S.Ct.) 1941; Burtis v. Butler Bros., 243 S.W.2d 235, (Tex.Civ.App.) 1951, n.w.h.; Opryshek v. McKesson & Robbins, Inc., supra.

This court speaking through Associate Justice Moore in Parker v. Center Grocery Company, Inc., 387 S.W.2d 903, (Tex.Civ.App.) 1965, n .w.h., held that where a defendant denied the account in toto by filing its sworn denial under the provisions of Rule 185, Texas Rules of Civil Procedure, that the effect of the defendant's sworn denial was to put the plaintiff on proof of its case by a preponderance of the evidence as at common law. That the essential elements of such proof are, inter alia, (1) sale and delivery of the merchandise and (2) that the amount of the account is just, or in other words, that the prices charged are in accord with an agreement or in the absence of an agreement that they are usual, customary or reasonable.

Upon a careful search of the record, we fail to find any evidence that the charges for the premiums by appellee for the insurance policies (the subject of this suit) and the services rendered in...