Rodgers-Wade Furniture Co. v. Wynn

• Decision Date: 12 April 1913
• Citation: 156 S.W. 340
• Parties: RODGERS-WADE FURNITURE CO. v. WYNN.
• Court: Texas Court of Appeals

156 S.W. 340

RODGERS-WADE FURNITURE CO. v. WYNN.

Court of Civil Appeals of Texas. Amarillo.

April 12, 1913.

Appeal from District Court, Moore County; D. B. Hill, Judge.

Action by the Rodgers-Wade Furniture Company against J. C. Wynn. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

A. P. Dohoney, of Paris, and Gustavus & Jackson, of Amarillo, for appellant. Mathis & Kay, of Wichita Falls, for appellee.

HALL, J.

Appellant, a private corporation, of Paris, Tex., brought this suit against appellee, upon a note executed by the W. F. Jourdan Furniture Company of Wichita Falls, Tex., for $800, and an itemized verified account, showing a balance due of $1,063.42. The note was dated April 20, 1908, and provided for interest and attorney's fees. The items on the account were dated from February 10, 1908, to January 21, 1909. Plaintiff further alleged that during the time of the transaction involved appellee, Wynn, was a member of the firm of W. F. Jourdan Furniture Company; that said firm was bankrupt and that the members thereof, except appellee, had been discharged in bankruptcy. Defendant's answer included a plea of non est factum, denial under oath of the justness of the account, denial of the partnership, and alleged that prior to the time of the transactions involved he had sold his interest in the business of W. F. Jourdan Furniture Company and retired from the firm. Appellant's first assignment is expressly waived.

By its second assignment, it is contended that the court erred in instructing the jury to find for the defendant upon the note in controversy, if they found from the evidence that defendant had retired from the firm of W. F. Jourdan Furniture Company prior to the time of the execution of said note and that plaintiff had notice of such retirement before accepting said note. This question has been settled adversely to appellant's contention in several cases in this state. Baptist Book Concern v. Carswell, 46 S. W. 858; Green v. Waco State Bank, 78 Tex. 2, 14 S. W. 253; White et al. v. Hudson et al., 36 S. W. 332; Blanks v. Halfin, 30 S. W. 941.

The first paragraph of the court's charge submitted to the jury the question of notice of Wynn's retirement from the W. F. Jourdan Furniture Company, having been brought to appellant, and this charge is attacked by appellant in its 3, 8, 10, 11, 18 and 20 assignments. The testimony of Tuttle upon this question is sufficient to warrant the court in submitting the issue to the jury. He testified: "At the time this note was signed on the day and about the time it was signed, myself and Mr. Jourdan and the representative of the Rodgers-Wade Furniture Company were present. The man I speak of as the representative of the Rodgers-Wade Furniture Company came to Wichita Falls to secure a note from the W. F. Jourdan Furniture Company for the Rodgers-Wade Furniture Company to have a settlement with Jourdan for the Rodgers-Wade Furniture Company. I was introduced to this man. As near as I can remember, we met there after supper, and he asked Mr. Jourdan in what way I was connected with the firm, inasmuch as I was there while the transaction was about to take place, and he told them then that I had a half interest in the W. F. Jourdan Furniture Company, and I also showed him the bill of sale that I had in the safe. The same bill of sale I have here and the note (meaning the note sued on herein) was signed later in the evening, after this information was given and the bill of sale shown him."

Appellant further insists under its fourth assignment that the court erred in the first paragraph of its charge in stating that any information that would put a prudent man upon inquiry is notice of a dissolution of a partnership. Reference to the charge shows that, if this was error in the same paragraph, the court correctly charged the jury that notice brought home to an agent of a party in regard to a particular transaction is equivalent to notice to the party himself, and that if the jury believed that any person empowered and authorized to act for plaintiff in connection with the settlement, and collection of the debt due plaintiff, at the time of the execution of said note, had notice of or knew of the fact that defendant had sold his interest in the W. F. Jourdan Furniture Company, then that such knowledge or notice to such person would be notice to the plaintiff; and this part of the charge is also assailed by appellant insisting that actual notice to appellant of appellee's retirement from the firm, and not merely constructive notice, is required.

In Gilbough v. Stahl Building Co., 16 Tex. Civ. App. 448, 41 S. W. 535, Pleasants, Justice, said: "To warrant a finding against the plaintiffs on this issue, the evidence must either show actual notice to them or to F. M. Gilbough, or it must establish facts which would charge them with notice—facts which would put one of ordinary prudence on inquiry." And in the case of Bonnett v. Tips Hardware Co., 59 S. W. 59, appellant's second contention is denied by the holding in that case that constructive notice is sufficient. The appellant herein being a corporation and its business being transacted with the W. F. Jourdan Furniture Co., through its agent, notice to its agent is ordinarily the only kind which could be given, and we think there is no error in the first paragraph of the charge.

The court submitted, in his charge for the consideration of the jury, the question of the correctness of the verified account. The account was sworn to under article 2323, Sayles' Civil Statutes, which makes such an account prima facie evidence of the fact that it is just and true, that it is due, and that all just and lawful offsets, payments, and credits have been allowed. In the absence of a controverting affidavit, the introduction of a verified account proves: (1) Its correctness; (2) the sale; (3) the delivery; (4) the price; and (5) the credibility of the affiant. The appellee filed a controverting affidavit sufficient under the statute, and in addition thereto a sworn plea, denying that he was a member of the firm of W. F. Jourdan Furniture Company when the items specified therein were sold. His denial of partnership having been filed rendered it unnecessary to file a controverting affidavit of the account under the statute. The testimony shows that there was no effort to "deny the account or any item therein," nor, in fact, to question any of the matters stated above which the introduction of the account in evidence established. Appellee testified: "I do not know whether the account sued on is correct or not." W. F. Jourdan's testimony was taken and he failed to deny the account in any particular. The only question at issue with reference thereto was whether or not appellee was a member of the firm during the time the items of the account were sold. Over appellee's sworn plea, denying partnership, the introduction of the account in evidence did not render him liable, and the court should not have submitted to the jury the correctness of the account. Appellee's real defense in no manner affected the justness or correctness of the account against the W. F. Jourdan Furniture Company, as the firm existed upon the dates set out in the statement of account. The fifth assignment is sustained, and what is here said disposes of the sixth and seventh assignments.

The fifth paragraph of the court's charge is as follows: "You are further instructed that plaintiff in its petition admits a credit on the account introduced in evidence in the sum of $1,097.46, and you are instructed that the amount of such payment will be applied to the satisfaction of the items of indebtedness first accruing as shown by said account." And the eighth paragraph of the charge is as follows: "You are instructed to apply the credits of $1,097.46 set out in plaintiff's petition to the satisfaction of the same amount of the items first accruing in the itemized account introduced in evidence before you, and will consider defendant's liability or nonliability only with reference to such items of the account, if any, remaining unsatisfied after such application of such credit." The giving of these instructions is the basis of appellant's ninth assignment of error. The application of payments in a case like this, where no intention to make the application by either party appears, is a question of considerable difficulty, and one upon which the courts and text-writers have disagreed. Fairchild v. Holly, 10 Conn. 175; Morgan v. Tarbell, 28 Vt. (2 Williams) 498; Gilmore on Partnership, 260; Allen v. Brown, 39 Iowa, 330; Coleman v. Lansing, 65 Barb. (N. Y.) 54; 2 Am. & Eng. Enc. of Law, 463, note 1; Storey on Partnership, § 157; Thurber v. McIntyre, 9 N. Y. St. Rep. 816; Allcott v. Strong, 9 Cush. (Mass.) 323; 30 Cyc. 617; Burns v. Pillsbury, 17 N. H. 66; Scott v. Kent, 54 N. Y. Super. Ct. 257; Shenks' Appeals, 33 Pa. 371. It will be observed, however, that most of the authorities cited, whether they hold that the application of the payment will be made to the oldest item of the account or otherwise, announce the doctrine that if equities intervened it is the duty of the court to make such application of the payments as the justice of the case demands. The most usual application made by the courts is to the payment of the earliest debt or item on the account, as was done by the court in the instant case, and this rule is adopted more often in suits upon current accounts. Phipps v. Willis & Bro., 11 Tex. Civ. App. 186, 32 S. W. 801; Id., 93 Tex. 648; Shuford v. Chinski, 26 S. W. 141; Willis & Bro. v. McIntyre, 70 Tex. 34, 7 S. W. 594, 8 Am. St. Rep. 574. Pleasants, Justice, said in the Phipps Case: "The rule, which requires unappropriated payments to be applied to the items in a running account according to their priority, has its foundation, we think, in the presumed intention of the debtor, rather than in the purpose of the court to prevent the...