New Trends, Inc. v. Stafford-Lowdon Co., STAFFORD-LOWDON

• Decision Date: 21 May 1976
• Docket Number: STAFFORD-LOWDON,No. 17701,17701
• Parties: NEW TRENDS, INC., Appellant, v.COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 778

537 S.W.2d 778

NEW TRENDS, INC., Appellant, v. STAFFORD-LOWDON COMPANY, Appellee.

No. 17701.

Court of Civil Appeals of Texas,

Fort Worth.

May 21, 1976.

Rehearing Denied June 18, 1976.

Lyne, Klein, French & Womble, and Erich F. Klein, Jr., Dallas, for appellant.

Wynn, Brown, McConnico, Mack, Renfro, & Thompson, and Henry C. Meyer, III, Fort Worth, for appellee.

OPINION

BREWSTER, Justice.

Stafford-Lowdon Company, appellee, initiated this action by suing New Trends, Inc., appellant, on a sworn account for sums that it alleged were owed to it for printing work that it had done under contract for the appellant. The appellant filed a proper written verified denial, as required by Rule 185, T.R.C.P., wherein it denied the justness of each and every item of the account. In the appellant's answer it also affirmatively pleaded as a defense that the appellee expressly and impliedly warranted that the work would be of high quality and done in a workmanlike manner and that the color reproductions would be accurate and that these warranties were breached and the appellee's printing job was not performed in a good and workmanlike manner. The appellant also urged a cross-action wherein it alleged the breach of those warranties. It contended the breach caused it to lose profits in its business. By the counterclaim appellant sought to recover as damages from appellee the lost profits and expense it incurred in having another printer re-do part of the work.

A jury trial was had and on receipt of the verdict the trial court rendered judgment in favor of Stafford-Lowdon Company for $22,407.45, plus attorney's fees. The counterclaim of New Trends, Inc., was denied.

This appeal is brought by New Trends, Inc., from that decree.

We affirm.

The effect of New Trend, Inc.'s verified denial of the correctness of Stafford-Lowdon Company's sworn account was to destroy the probative force of the itemized account attached to its petition and to put Stafford-Lowdon Company on proof of its claim. Stafford-Lowdon Company, by virtue of New Trend, Inc.'s verified denial, had the burden in this case of proving its cause of action the same as it would have had to prove it up at common law. See Burrus Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App., Houston, 1966, ref., n.r.e.).

The appellee had alleged in its petition: 'That the verified account attached . . . arises out of business dealings between the parties, and is also an account covering certain color catalogues, goods, wares and merchandise, which Plaintiff, at the special instance and request of the Defendant, sold and delivered to the Defendant, on or about the dates specified, and in consideration whereof, the Defendant then and there promised to pay to Plaintiff the sums of money charged therefor, and upon the terms shown in said account . . ..'

The evidence shows that the parties had four transactions between them.

1. The undisputed evidence in the case showed that New Trends, Inc. was interested in having printed some 24-page colored catalogues for use in its business. Stafford-Lowdon Company submitted a written bid to appellant on that job wherein it offered to print the colored catalogues for appellant for a specified price per thousand catalogues ordered. Appellant accepted such bid and under that contract Stafford-Lowdon Company printed and sold to appellant 445,000 of such catalogues for the agreed price specified in the bid. These catalogues were delivered by appellee to the places designated by appellant. The amount of the invoice on this order was $21,647.20. It was dated September 20, 1972.

2. The undisputed evidence showed that thereafter on about October 10, 1972, appellee submitted another written bid to appellant offering to print additional copies of the same catalogues for appellant at the prices per thousand specified on the bid. The appellant accepted appellee's offer and ordered 87,653 more copies of the same catalogue at the price per thousand specified in the bid. Appellee printed these additional copies and delivered them to the people and places designated by appellant. The amount of the invoice for this order was $5,588.90.

3. Thereafter appellee submitted another bid to appellant whereby it offered to print for appellant 40,000 additional copies of the same catalogue for the price per thousand specified on the invoice. Appellant accepted this offer and ordered 40,000 additional copies of the catalogue for the price specified in the bid and the appellee printed and delivered those catalogues to the persons and places designated by appellant. This last order was filled about November 3, 1972, and the amount of the invoice for that order was $4,080.00.

The undisputed evidence in the case established the facts referred to above in connection with the three catalogue orders.

4. The parties had one other transaction that is involved here. Appellant wanted 15,000 each of 11 catalogue sheets, printed on both sides using 4 colors. The appellee made a bid dated October 23, 1972, on that job. At first appellant awarded the job to another printer. Appellant needed these sheets by December 22, 1972, and in mid-December the printer to whom the job had been awarded withdrew. Appellee then agreed to undertake the job for its quoted prices if appellant would agree to let it print the sheets without submitting to appellant color keys. Appellant agreed to this because the deal had by that time become a rush order. Appellant accepted appellee's bid to print these sheets for the price specified in the bid. Appellee then printed the order and delivered them by truck on the last day of the deadline to appellant's place of business. There appellant took one box containing 500 of the printed sheets, and used part of them to fill out the catalogues of its salesmen. It then refused to accept from appellee the rest of the order, contending that the colors were poorly done. The invoice date on this was December 21, 1972, and the amount of the invoice was $6,181.35. This order was also placed for an agreed price. The facts related concerning this fourth transaction were also undisputed.

The undisputed evidence also showed that appellant paid $15,090.00 to appellee on the total amount owed. The total of the invoices for the four transactions is $37,497.45 and when the ,15,090.00 is deducted from it a balance of $22,407.45 remains. This is the amount sued for by appellee and the amount appellee recovered by the judgment.

Appellant's contention on this appeal is that the verdict returned by the jury was such that it would support no judgment in favor of the appellee. It contends that the only judgment that the verdict would support is one providing that neither party recover anything by their action against the other.

The appellee did not request the trial court to submit any issues to the jury tending to establish its cause of action. The charge contained no such issues except the three issues making inquiry as to what would be a reasonable attorney's fee for plaintiff's attorney.

In appellant's first 16 points of error it contends that the trial court committed reversible error in not submitting to the jury for its determination various issues inquiring whether the appellee had proved by a preponderance of the evidence the elements of its cause of action. In some of those points appellant contends that the trial court erred in rendering judgment for appellee because of such failure and that because appellee failed to request any of such issues the trial court could only render a take nothing judgment in so far as plaintiff's action was concerned. Issues pertaining to appellant's counterclaim were submitted in the charge and found by the jury against appellant. Appellant argues in those points that because no issues were submitted pertaining to appellee's cause of action, the appellee waived such action. It further argues that since appellee's action against appellant was thus waived and because the jury found against appellant on its counterclaim that the only judgment that the trial court could have correctly rendered in the case was a take nothing judgment against both parties.

We have carefully considered appellant's points of error 1 to 16, inclusive, and overrule each of them.

The elements of appellee's cause of action were: (1) That appellee submitted separate bids to do each of the various printing jobs for the prices stated in such bids; (2) that the appellant accepted the offers contained in such bids and ordered the desired printing involved in each contract to be done for it by appellee; (3) that appellee did the printing and delivered it to appellant or tendered it to him; and (4) the amount of the contract price that is due and unpaid. See Brooks v. Eaton Yale and Towne, Inc., 474 S.W.2d 321 (Tex.Civ.App., Waco, 1971, no writ hist.)

The evidence in this case established each of those elements as a matter of law and for that reason the trial court was correct in not submitting issues concerning them to the jury.

One contention urged by appellant in its points 7, 8 and 9 is that the trial court erred in not submitting issues to the jury inquiring whether the catalogues and single sheets were reasonably worth the amounts charged therefor. In another of those points appellant says the trial court should have asked the jury if the account was just.

In cases where the parties have agreed on the price to be paid for the goods involved, as is the case in each of the four transactions involved here, it is not necessary to submit to the jury an issue inquiring as to the reasonable value of the goods or whether the goods involved are reasonably worth the price that the parties had agreed upon. The justness of the account in each of the four transactions involved here is established by the undisputed evidence that the parties have themselves agreed on the prices to be paid for the goods involved. See Brooks v. Eaton Yale and Towne, Inc., supra.

In ...