McKnight v. Virginia Mirror Company

• Citation: 463 S.W.2d 428
• Decision Date: 10 February 1971
• Docket Number: No. B--2424,B--2424
• Parties: A. F. McKNIGHT, Petitioner, v. VIRGINIA MIRROR COMPANY, Inc., Respondent.
• Court: Supreme Court of Texas

Page 428

463 S.W.2d 428

A. F. McKNIGHT, Petitioner, v. VIRGINIA MIRROR COMPANY, Inc., Respondent.

No. B--2424.

Supreme Court of Texas.

Feb. 10, 1971.

Esir Tobolowsky and E. D. Hurt, Dallas, for petitioner.

Schroeder, Guest & Hoffmeyer, Arthur G. Schroeder, Jr., Dallas, for respondent.

DANIEL, Justice.

Virginia Mirror Company brought this suit against Earl Moore, d/b/a Texas Glass and Mirror Company, upon a sworn account of $4,767.99 for mirrors delivered to Moore in Dallas, and against A. F. McKnight upon a letter of guaranty. Moore defaulted and judgment was rendered against him, from which no appeal was perfected. McKnight denied liability on his letter of guaranty, alleging that the terms of the sales contract between Virginia Mirror and Moore varied from the terms and conditions of his guaranty of payment by Moore. The issues between Virginia Mirror and McKnight were tried to a jury, which found (1) that Virginia Mirror did not fail to use ordinary care and diligence to collect from Moore and (2) that it did not agree that Moore could have additional time to pay. The trial court disregarded the jury findings and entered judgment non obstante veredicto in favor of McKnight. The Court of Civil Appeals found that there was evidence of probative value to support the jury findings and reversed and rendered in favor of Virginia Mirror. Virginia Mirror Co. v. Moore, 458 S.W.2d 938.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court. The parties will be referred to as in the trial court or by name.

McKnight's letter of guaranty, dated July 19, 1966, was addressed 'To Whom it May Concern' and guaranteed payment for a total of five cases of mirrors to be delivered to Moore for use on a Dallas apartment project, but it contained the following conditions:

'Each week a check is to be made on volume used and the following Friday, that part used is to be paid for. The total volume will be not more than $5,000.00.'

These conditions, providing for a weekly inspection of the volume of mirrors used and payment on the following Friday for the volume used during the preceding week, were interpreted by both parties throughout the trial as a limitation on the liability and responsibility of McKnight under his guaranty. Such interpretation also was conceded to be correct by counsel for plaintiff in oral argument before this Court. Thus, it is undisputed that McKnight guaranteed payment of the Moore account only if the sale to Moore provided for a weekly check on volume used and payment each Friday for the mirrors found to have been used during the preceding week.

Plaintiff's Dallas representative, Mr. R. L. Hunt, mailed the letter of guaranty to his home office in Martinsville, Virginia, where it was accepted. However, there is no evidence that the terms and conditions of the guaranty were incorporated in the subsequent sales agreement between plaintiff and Moore. Instead, it is undisputed that on all subsequent deliveries to Moore, the home office billed him on its customary open account invoices, which provided for payment within thirty days, with a 1% Discount if paid within ten days. The only sales contract between plaintiff and Moore was evidenced by these invoices, copies of which were attached and made a part of the plaintiff's petition filed herein on sworn account. There is no allegation or evidence that plaintiff required or made a weekly inventory of mirrors used or required payment for such number each Friday. On the contrary, plaintiff's bookkeeper and its Dallas representative, Mr. Hunt, both testified that the Moore accounts were payable monthly, and the bookkeeper testified that a weekly check on the volume of mirrors used by Earl Moore was 'no responsibility of ...