Schucht v. Stidham

• Decision Date: 29 November 1930
• Docket Number: No. 12509.,12509.
• Citation: 37 S.W.2d 214
• Parties: SCHUCHT v. STIDHAM et al.
• Court: Texas Court of Appeals

37 S.W.2d 214

SCHUCHT v. STIDHAM et al.

No. 12509.

Court of Civil Appeals of Texas. Fort Worth.

November 29, 1930.

Rehearing Denied January 17, 1931.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Action by O. M. Stidham and another against Paul Schucht. From a judgment in favor of plaintiffs, defendant appeals.

Reversed and remanded.

Taylor, Muse & Taylor, of Wichita Falls, for appellant.

Ben W. Tipton, of Electra, and Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellees.

BUCK, J.

This is an appeal from a judgment of the court below, in which judgment was rendered for the plaintiff for $4,759.25. Plaintiff filed a petition in which he attempted to set out a sworn account. The only evidence introduced to support the account was the testimony of O. M. Stidham, one of the plaintiffs. Stidham and C. C. Thrasher were partners. The alleged account covered about a year, beginning June 18, 1928, and ending June 21, 1929. The items alleged were for hauling two loads of cable tools from south of Mineral Wells, to Paul Schucht's yard at Electra, $437; to material furnished, digging cellar, hauling lumber and tools, and building standard rig and derrick $2,750; and other items in which the plaintiff failed to designate the price he charged for each separate piece of work that he did.

Article 3736, Rev. Civ. Statutes of 1925, reads as follows: "When any action or defense is founded upon an open account, supported by the affidavit of the party, his agent or attorney, taken before some officer authorized to administer oaths, to the effect that such account is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that such account is not just or true, in whole or in part, and if in part only, stating the items and particulars which are unjust; provided, that when such counter affidavit shall be filed on the day of the trial, the party claiming under such verified account shall have the right to continue such cause until the next term of court; when he fails to file such affidavit, he shall not be permitted to deny the account, or any item therein as the case may be."

An open account is one in respect to which nothing has occurred to bind either party by its statements; an account which is yet fully open to be disputed. A stated account is an account of many items based upon agreements as to each item as to the prices and the time of payment. It is only an open account that is provable by an affidavit under this article. Wroten Grain & Lumber Co. v. Mineola Box Mfg. Co. (Tex. Civ. App.) 95 S. W. 745. An account in part for items due for salary under a contract, and in part for board, involves isolated transactions resting on special contract, and is not an account whereby the relation of debtor and creditor is created by a general course of dealing, and, though the account is sworn to, defendant need not deny the same under oath. Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442. An account for merchandise sold defendant, not itemized as contemplated by the statute, is not such an account as when sworn to would be admissible to prove itself, although there was no denial under oath to any item. A. Harris & Co. v. Grinnell Willis & Co. (Tex. Civ. App.) 187 S. W. 753. This article is applied only to transactions between persons in which by sale and purchase the title to personal property is passed from one to another and the relation of debtor and creditor is created by general course of dealing, and does not mean one or more isolated transactions resting upon a special contract. Bixler v. Dolieve (Tex. Civ. App.) 220 S. W. 148.

This account is not an open account under the terms of the statutes. The plaintiff attempted to prove the account by evidence, and the testimony of Stidham was to the effect that these various items charged were reasonably worth the amount so charged. But Stidham was one of the plaintiffs, and the jury was authorized to believe any part of his testimony and to disbelieve any part thereof, or to reject the testimony as a whole.

The court instructed the jury to find for the plaintiff, and in this there was error. Where the testimony is given altogether by an interested witness, or witnesses, or comes from an interested source, the jury has the right to disregard such testimony altogether. Payne, Agent, v. Malone (Tex. Civ. App.) 239 S. W. 998; Ry. Co. v. Runnels, 92 Tex. 307, 47 S. W. 971; West Lumber Co. v. Goodrich (Tex. Com. App.) 223 S. W. 183, 192.

Therefore, we reverse the judgment and remand the cause for a new trial.

On Appellee's Motion for Rehearing.

Appellees in their motion for rehearing do not question the ruling of the court in holding that the account to which the plaintiff made affidavit was not an open account under the terms of article 3736, Rev. Civ. Statutes 1925, but do complain of the ruling and conclusion that, when the testimony was given, altogether by an interested witness, the jury had the right to discredit any part or all of the testimony, and that the peremptory instruction was not authorized. We are cited to one of our own decisions, to wit, Hill v. Staats, 187 S. W. 1039, 1042, writ of error denied by the Supreme Court, in which we said: "Without citing further authorities, it is sufficient to say that we find that the trial court did not err in directing a verdict for defendant upon the facts shown. This conclusion is reached with the knowledge that the entire testimony upon the question of the instructions given to the chauffeur came from the lips of defendant and his wife, who both may be said to be interested parties. The testimony of appellee and his wife was positive and unequivocal, nor is there any circumstance disclosed in the record tending to discredit or impeach such testimony. See Felts v. Bell County, 103 Tex. 616, 132 S. W. 123; Malone v. Bank [Tex. Civ. App.] 162 S. W. 369; Christensen v. Christiansen [Tex. Civ. App.] 155 S. W. 995; Brooks v. Davis [Tex. Civ. App.] 148 S. W. 1107; Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788; Starkey v. Wooten Gro. Co. [Tex. Civ. App.] 143 S. W. 692; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W. 572."

Appellees also cite Dunlap v. Wright, 280 S.W. 276, 279, by Chief Justice Gallagher of the Waco Court of Civil Appeals, in which the court said: "It has been frequently held, however, that, when the evidence of an interested witness is direct and positive on the point at issue, and where there are no circumstances in the record tending to discredit or impeach his testimony, a verdict contrary thereto will be set aside, that such testimony will justify an instructed verdict, and that a judgment contrary thereto may be reversed and rendered. Joffre v. Mynatt (Tex. Civ. App.) 206 S. W. 951, 952; Starkey v. Wooten Grocery Co. (Tex. Civ. App.) 143 S. W. 692, 693, 694; Friedman v. Peters, 18 Tex. Civ. App. 11, 44 S. W. 572; Thomas & Co. v. Hawthorne (Tex. Civ. App.) 245 S. W. 966, 972 (writ refused); Hill v. Staats (Tex. Civ. App.) 187 S. W. 1039, 1042 (writ refused Com. Judges); McKeever v. Dittman (Tex. Civ. App.) 262 S. W. 1054, 1058; Daggett v. Worsham & Co. (Tex. Civ. App.) 264 S. W. 180, 185; Dallas Hotel Co. v. Newberg (Tex. Civ. App.) 246 S. W. 754, 756; Malone v. National Bank of Commerce (Tex. Civ. App.) 162 S. W. 369, 370; Houston v. Holmes (Tex. Civ. App.) 262 S. W. 849, 850; Long v. Shelton (Tex. Civ. App.) 155 S. W. 945, 946; King v. Worthem (Tex. Civ. App.) 37 S. W. 1133."

See Still v. Stevens (Tex. Civ. App.) 13 S. W.(2d) 956; Sigmond Rothschild v. Moore, 22 S.W.(2d) 535, by the Beaumont Court of Civil Appeals, and other cases, laying down the rule that a peremptory instruction is justified where the only testimony is by an interested witness, and the testimony is positive and direct on the points at issue, and where there are no circumstances in the record tending to discredit or impeach the testimony.

But does the testimony in the instant case bring the case within the rule just noted?

It will be remembered that O. M. Stidham and C. C. Thrasher, constituting the firm of Stidham & Thrasher, plaintiffs, relied on the contract with Schucht, for the work to be done by plaintiffs and the amount to be paid by defendant. Stidham, the only witness who testified, testified that he entered into a contract with Mr. Schucht during the year 1928, "to do some work." He testified: "Our contract was, he had a lease over there, and he was to drill a well, and he was turning over some of his acreage and interest to Dr. Hargraves, and for so much money and so much interest, and he wanted a rig built on there. The contract was, he wanted a rig built and what he wanted to...