Mergele v. Houston, 14716

• Decision Date: 20 November 1968
• Docket Number: No. 14716,14716
• Citation: 436 S.W.2d 951
• Parties: John MERGELE, d/b/a Bexar Vending Company, Appellant, v. Sam G. HOUSTON, Jr., d/b/a Sam Houston Vending Company, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 951

436 S.W.2d 951

John MERGELE, d/b/a Bexar Vending Company, Appellant, v. Sam G. HOUSTON, Jr., d/b/a Sam Houston Vending Company, Appellee.

No. 14716.

Court of Civil Appeals of Texas San Antonio.

Nov. 20, 1968.

Rehearing Denied Jan. 8, 1969.

Prickett, Tracy & Cook, Joe D. Prickett, San Antonio, for appellant.

Sawtelle, Goode, Troilo, Davidson & Leighton, Terry Topham, San Antonio, for appellee.

BARROW, Chief Justice.

This is an appeal from a judgment whereby appellee recovered the sum of $4,661.81 from appellant in his suit for debt and attorneys' fees. This judgment includes the sum of $2,106.40 on a so-called stated account, interest on said sum from July 15, 1965, to date of judgment in the amount of $305.41, reasonable attorneys' fees of $750.00, and the sum of $1,500.00 for the reasonable rental value of a coffee machine for thirty months at $50.00 per month. Although the trial was by jury, the only issue submitted inquired as to the rental value of the coffee machine. The amount of attorneys' fees was set by the trial court in accordance with the stipulation of the parties.

Appellant urges sixteen points of error which will be grouped in accordance with the item of recovery to which each is applicable, i.e., the stated account, interest, attorneys' fees, or rental value of the coffee machine. Four of these points complain of the error of the court in overruling appellant's objections to the charge of the court. These objections were apparently timely dictated to the court reporter by agreement of counsel and with permission of the court, in that the transcript contains a document to this effect. However, that instrument does not have the official signature of the judge endorsed thereon as required by Rule 272, Texas Rules of Civil Procedure. In the absence of a compliance with this rule, appellant's objections were not properly preserved for appellate review and these points cannot be considered by us. Maryland Casualty Co. v. Golden Creamery, 389 S.W.2d 701 (Tex.Civ.App.--Corpus Christi 1965, writ ref'd n.r.e.); Uehlinger v. State, 387 S.W.2d 427 (Tex.Civ.App.--Corpus Christi 1965, writ ref'd n.r.e.); Bituminous Casualty Corp. v. Jordan, 351 S.W.2d 559 (Tex.Civ.App.--Waco 1961, no writ); Ramsey v. Polk County, 256 S.W.2d 425 (Tex.Civ.App.--Beaumont 1953, no writ).

The factual background of this litigation is relatively simple as compared to the complex procedural background. Each party went to trial on his second amended original pleading and thereafter each filed two trial amendments. Appellee's last petition sought to recover the sum of $3,561.00 on a sworn account, on which $200.00 had been paid, together with reasonable attorneys' fees. This account was based on the following items:

In the alternative appellee alleged that said items and services were furnished to appellant and were of the reasonable value as set out above. As to the coffee machine, it was alleged in the further alternative that if it was not requested by appellant, same was delivered to him erroneously or by mistake, and that since appellant had accepted and used the machine he thereby waived any right to deny that appellee was entitled to recover the purchase price of same.

Appellant admitted that he was indebted for the first three items of the account listed above, although he pleaded that payments had been made. He denied that he had requested the coffee machine, and alleged that he was required to store it on behalf of appellee for seventeen months at an expense of $27.50 per month. He further pleaded that he had returned several candy machines to appellee in Wichita Falls, and that he was entitled to recover for three days' services at $100.00 per day in arranging to store the coffee machine and in returning the candy machines. He accordingly prayed for judgment on his counter-claim for his time and expense. No issues were requested in support of this counter-claim.

The evidence establishes that prior to April, 1965, both parties lived in Wichita Falls where appellant worked for Fed Mart and appellee operated his automatic vending machine business. In this capacity, appellee owned numerous types of vending machines which he placed in locations such as Sheppard Air Force Base and Fort Sill. Appellee also had machines at the Fed Mart in Wichita Falls and the parties became friends through this relationship. In April, 1965, appellant quit his Fed Mart job and moved to San Antonio. Appellee helped appellant move, and at that time there was some discussion relative to appellee's locating vending machines in this area. Between April and June there were further discussions, without a formal agreement, to the effect that the parties would form a partnership or corporation to operate a vending machine business in San Antonio. Appellee was to furnish the equipment and know-how and appellant would manage the business.

Around the first part of May, 1965, a building was rented in San Antonio, and various vending machines were brought from Wichita Falls by appellee and installed in that location. Arrangements were also made to install machines in a school district in San Antonio. By June 12, 1965, the parties had mutually agreed that a partnership arrangement could not be worked out between them and a settlement was agreed upon whereby appellant was to get the business, including the equipment, and was to pay appellee the sum of $5,628.78. This indebtedness was acknowledged by appellant in a letter of June 15, 1965, to appellee, which recognized the valuations attached to each of the first three items of the account. Appellee concedes that shortly thereafter appellant reduced this debt to $2,106.40 by return of candy machines and payment of a truck lien. The coffee machine was not mentioned in the agreement of June 12, 1965, although it was in San Antonio at the time and installed in the building with other machines.

Appellant directs four points to the stated account. He urges that the trial court erred in overruling his special exceptions and not requiring appellee to identify the items contained in said account by detailed description. He also urges that there were no pleadings to support appellee's testimony that he owned said items and that there was no testimony that the charges were fair, reasonable or supported by consideration. It is seen that both by pleadings and by his letter of June 15, 1965, appellant acknowledged that he owed for these items in the amounts alleged in accordance with the dissolution agreement. Therefore, the court did not err in rendering judgment for same.

Interest was allowed on this account from July 15, 1965, to date of judgment and appellant urges that there were no pleadings to support same. The prayer to appellee's second amended original petition seeks 'interest at six (6) per cent on the unpaid indebtedness.' Appellee also filed a trial amendment after the verdict of the jury but before judgment, seeking interest on this sum. The prayer, which was not excepted to by appellant, fully supports the recovery of interest.

The parties stipulated that the trial court could determine a reasonable attorneys' fee in the event it should be found that appellee was entitled to recover same. In accordance with this stipulation, the trial court awarded the sum of $750.00 as a reasonable fee for prosecution of this suit on the stated account. Apppellant complains that the pleadings and evidence are insufficient in law to support a claim for attorneys' fees, and also that there is no evidence to show a presentment of a claim within the terms of Art. 2226, Vernon's Ann.Civ.St., more than thirty days before this suit was filed on October 12, 1966, and that, in any event, a fact issue was raised as to whether a presentment was made.

Appellee testified that a written demand was mailed from his office on August 19, 1965, asserting claim for $2,100.00, and that in addition numerous telephone calls were made to appellant and 'other invoices sent.' On ...