McAx Sign Co., Inc. v. Royal Coach, Inc., 19101
| Decision Date | 15 February 1977 |
| Docket Number | No. 19101,19101 |
| Parties | McAX SIGN COMPANY, INC., Appellant, v. ROYAL COACH, INC. and Dunfey Family Corporation, Appellees. |
| Court | Texas Court of Appeals |
Richard G. Danner, Jr., Dallas, for appellant.
Stephen R. Kirklin, Childs, Fortenbach, Beck & Guyton, Houston, for appellees.
Plaintiff, McAx Sign Company, Inc., appeals from a judgment on an instructed verdict for defendants, Royal Coach, Inc. and Dunfey Family Corporation. Plaintiff complains of the rulings of the trial court in excluding certain evidence and in granting defendants' motion for instructed verdict, but it attacks only one of several grounds stated in the motion. We affirm on the ground that plaintiff has not discharged its burden to establish that the instructed verdict cannot be sustained on any of the other grounds set out in the motion and that exclusion of the evidence is not shown to be reversible error because it is not shown to be germane to any of the several independent grounds. We hold also that the trial judge did not abuse his discretion in denying plaintiff's request for a postponement of the trial.
The suit was brought by appellant as lessor on an alleged agreement to assume the rentals payable under a written lease of an advertising sign. Defendants denied the agreement and pleaded the Statute of Frauds, Tex.Bus. & Comm.Code Ann. sec. 26.01(b)(6) (Vernon 1968), and further pleaded that plaintiff had no interest in the lease because it had been assigned to Hillside National Bank. As evidence of the alleged agreement to assume payment of the rentals, plaintiff relied on an offer and acceptance by an exchange of telegrams. Although the telegram containing the alleged acceptance was admitted without objection, it referred to terms stated in the earlier telegram, which was not produced. Secondary evidence of the contents of this earlier telegram was excluded by the trial court. Appellant complains in its first three points of the exclusion of this secondary evidence and in his fourth point complains of the instructed verdict on the ground that "there was sufficient evidence of probative value to allow the jury to consider the question of whether the Appellee had assumed the obligations under the written Lease Agreement."
Appellees' first counterpoint asserts:
Appellant has waived its right to complain of the trial court's action in granting appellees' motion for instructed verdict because appellant failed to attack in this appeal each and every independent ground contained in such motion.
In support of this counterpoint appellees argue that the points of error raised by appellant are germane only to two of the grounds included in the motion for instructed verdict and do not challenge the sufficiency of the other thirteen grounds. Consequently, appellees argue that appellant has failed to discharge its burden to establish that the instructed verdict cannot be supported on the other grounds stated. After this question was raised by appellees, appellant made no request for leave to amend its brief to include points and argument attacking the other grounds stated in the motion.
We agree with appellees that appellant's first four points all relate to the matter of the alleged agreement by appellees to assume the rental payments, and even if well taken, they do not establish that the instructed verdict cannot be sustained on other, independent grounds. Appellant's burden to show that the instructed verdict cannot be sustained on any of the grounds stated in the motion is established by the following cases: McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.1964); Dunham and Ross Co. v. Stevens, 538 S.W.2d 212, 214 (Tex.Civ.App. Waco 1976, no writ); Woodrum v. Long, 527 S.W.2d 281, 283 (Tex.Civ.App. Austin 1975, no writ); Carrico v. Stop-N-Go Markets of Texas, Inc., 492 S.W.2d 383, 384 (Tex.Civ.App. San Antonio 1973, no writ).
Some of the grounds stated in the motion for instructed verdict are obviously insufficient, such as general averments that "there is no evidence that warrants the submission of the case to the jury" and that "the evidence is wholly insufficient to warrant the submission of this case to the jury." Others are more substantial, at least on the face of the motion, and several relate to the defense that plaintiff cannot recover the rentals specified in the lease because the lease has been assigned to the Hillcrest National Bank. Appellant does not attack any...
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