Royal Typewriter Co. v. Vestal, 1852
| Decision Date | 11 October 1978 |
| Docket Number | No. 1852,1852 |
| Citation | 572 S.W.2d 377 |
| Parties | ROYAL TYPEWRITER CO., a Division of Litton Business Systems, Inc., Appellant, v. Hubert H. VESTAL and Don Middlebrook, Partners, Inc. d/b/a U. S. Land Development Co., a partnership, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Mark P. Blenden, Paul G. Yale, Lapin, Totz & Mayer, Houston, for appellant.
Kenneth L. Box, Mullins, Box & Parish, Houston, for appellee.
Appellant, Royal Typewriter Company, plaintiff below, appeals from a take nothing judgment following a nonjury trial in a suit on a contract against appellees Vestal, Middlebrook, and U. S. Land Development Company, defendants below. Appellant conceded at argument that Middlebrook is not a party to this appeal. We affirm.
On December 5, 1972, a contract was executed by Royal, purportedly with U. S. Land Development Company, for the rental of a copying machine. The agreement was signed by one "Julian Holsten" whose title, as written on the agreement, was "Sales Mgr." The copier was installed on December 8, 1972. On February 21, 1975, Royal filed suit against Vestal, Middlebrook, and U. S. Land Development, alleging that "the Defendants did . . . make and execute" the rental agreement, and that payments totaling $1,254.20 were due and not paid. Royal thus asserted damages resulting from breach of a contract with defendants.
Defendants, in addition to a general denial, pled that they did not execute the contract in question and were not indebted to Royal. Royal filed no additional pleadings. At argument Royal conceded that the actual contract had not been proved and that ratification was the only issue upon which they rely in their appeal to bind defendants. Royal had requested additional findings of fact and conclusions of law on the issue of ratification. The trial judge refused to make any additional findings or conclusions on that issue. We conclude that Royal was not entitled to such additional findings, and cannot prevail upon the theory of ratification in this appeal because ratification was not pled.
The Supreme Court of Texas has held that ratification is a plea in avoidance and thus is an affirmative defense which, in the absence of trial by consent, is waived if not affirmatively pled under Rule 94, Texas Rules of Civil Procedure. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 835 (Tex.Sup.1967). The record before this court does not indicate that the issue of ratification was tried by consent. Rule 94 requires that "(i)n pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense." The rule itself is not limited to "defendants" but applies to all parties. When a plaintiff desires to rely on an affirmative matter in avoidance of a defense...
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...LoBue v. United Services Planning Association, Inc., 467 S.W.2d 574, 576 (Tex.App.--Fort Worth 1971, writ dism'd); Royal Typewriter Co. v. Vestal, 572 S.W.2d 377, 378 (Tex.App.--Houston [14th Dist.] 1978, no writ); Sustala v. North Side Ready-Mix Concrete Co., 317 S.W.2d 64, 67-68 (Tex.Civ.......
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...claim or defense—asserted in another pleading, regardless of the alignment of the parties. See id.; see also Royal Typewriter Co. v. Vestal, 572 S.W.2d 377, 378 (Tex. Civ. App.-Houston [14th Dist.] 1978, no writ). Here, Compass Bank sought to avoid MFP's affirmative defense of excuse by ass......
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