Rosenthal Produce Co. v. Tasinc Corp., 17655
| Decision Date | 02 July 1971 |
| Docket Number | No. 17655,17655 |
| Citation | 470 S.W.2d 448 |
| Parties | ROSENTHAL PRODUCE COMPANY, Inc., et al., Appellants, v. TASINC CORPORATION, Appellee. |
| Court | Texas Court of Appeals |
H. Hollis Rankin, III, Rankin, Kern & Martinez, McAllen, for appellants.
Leslie P. LeGrand, Jr., Wise & Stuhl, Dallas, for appellee.
The appellee Tasinc Corporation sued on two promissory notes signed by the appellant Rosenthal Produce Company, Inc., hereinafter called Rosenthal, and to foreclose chattel mortgages on systems of automatic sprinklers installed in two produce buildings in Mercedes, Texas. The appellant Mercedes Fruit & Vegetable Company, hereinafter called Mercedes, was alleged to claim an interest in the systems. 'The trial court granted appellee summary judgment against Rosenthal for the amount of the notes, with interest and attorney's fees, and for foreclosure of the liens on the sprinkler systems as against Rosenthal and Mercedes. Rosenthal and Mercedes appeal on three points of error.
By their first point appellants complain of the summary judgment on the ground that the promissory notes were not properly authenticated and not proved as a matter of law to be owned by appellee. The motion for summary judgment was supported by the affidavit of J. R. Davenport, president of appellee, to which were attached copies of the notes, which Davenport swore were true and correct copies of the notes executed by Rosenthal, payable to the order of Texas Automatic Sprinklers, Inc. (of which Davenport was also president) and which were duly assigned to, and then owned by, the appellee. This summary judgment evidence was in full compliance with the requirements of Rule 166--A, Vernon's Texas Rules of Civil Procedure. Accordingly, the first point of error is overruled.
Under their second point of error the appellants take the position that Rosenthal Produce Company was a corporation and that appellee had not proved that the corporation had authorized its president to sign the notes. Appellee had alleged the execution by Rosenthal of the notes, and Rosenthal's only answer was a general denial. Rule 93(h), T.R.C.P., requires a verified denial of the execution by the defendant or its authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by it or by its authority, and not alleged to be lost or destroyed. This was not done, and there was therefore no issue in this respect presented for trial.
Appellants did present an affidavit of C. D. Monroe, who was president of Rosenthal at the time of the affidavit, merely stating that the minute book did not reflect that any such authority had been given to those who signed the notes. A corporation cannot evade liability on its contracts merely by showing that its own minute book failed to record explicit authority by the board of directors to an officer to sign same. Therefore, we hold that Monroe's affidavit raised no fact issue in this respect, Canadian Long Distance Telephone Co. v. Seiber, 159 S.W. 897, 903 (Tex.Civ.App., Amarillo ...
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Broaddus v. Town North Nat. Bank
...affidavits were insufficient because "papers referred to in the affidavits were not attached or served therewith." In Rosenthal Produce Co. v. Tasinc Corp., 470 S.W.2d 448 (Tex.Civ.App. Dallas 1971, no writ), it was held that where the affidavit in support of the summary judgment motion, ma......
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Universal Printing Co. v. Sayre & Fisher Co., 34814
...sustaining the motion. An affidavit similar to the one filed by the Secretary of Sayre was filed in Rosenthal Produce Company v. Tasine Corporation, 470 S.W.2d 448 (Tex.Civ.App.1971). In that case, Tasinc Corporation sued on two promissory notes signed by Rosenthal, and the trial court gran......