Searle-Taylor Mach. Co. v. Executive Car Leasing Co. of Houston, SEARLE-TAYLOR
| Decision Date | 23 February 1972 |
| Docket Number | No. 583,SEARLE-TAYLOR,583 |
| Parties | MACHINERY COMPANY, Inc., et al., Appellants, v. EXECUTIVE CAR LEASING COMPANY OF HOUSTON, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Walter Jefferson, Tom Gray, Cutrer & Jefferson, Houston, for appellants.
Anthony L. Vetrano, Jr., Houston, for appellee.
This is a suit arising from breach of a written lease contract.
Plaintiff, Executive Car Leasing Company of Houston, leased a 1964 Buick automobile to defendant Searle-Taylor Machinery Company for a term of one year at a total monthly rental of $143.12. The lease contract was signed by the defendant's vice-president, Tom Taylor who also was made a defendant in this suit jointly and individually.
A copy of the lease contract was attached to and made a part of the plaintiff's original petition. Plaintiff's petition set forth the making of the lease contract, the breach of that contract and the damages suffered thereby. Plaintiff's petition then proceeds, however, to refer to the cause of action as one of a verified account in which liquidated damages and attorney's fees are sought.
The trial court, sitting without a jury, rendered judgment for plaintiff in the amount prayed for in its petition and computed due under the contract, $1,324.41. The court's judgment states that plaintiff's demand is proven '. . . and liquidated by an instrument in writing and that Plaintiff's demand and petition was based on a sworn account, . . ..' The judgment also recites that judgment for attorney's fees in the sum of $397.00 was granted plaintiff '. . . after presentation of evidence on attorney's fee and by virtue of Art. 2626, (sic) Vernon's Texas Statutes, as amended, for . . .' The total judgment was therefore computed to be the sum of these two figures, $1,721.41.
Findings of fact and conclusions of law were sought by defendant and made by the trial court. The findings fully support recovery under the contract. The lease contract provided for reasonable attorney's fees in the event of default and further provided that if lessee be a corporation, the person signing in the corporation's behalf should be jointly and severally liable for all rentals or other sums due under the lease). The trial court's findings recited that Tom Taylor, jointly and individually, signed and entered into the contract with the plaintiff, that defendants defaulted on the contract, that as a result of the default defendants owed the undisputed sum of $1,324.41 under the contract, that the contract provided for reasonable attorney's fees and that the plaintiff should recover the sum of $1,324.41 as per the contract and $397.00 attorney's fees. No statement of facts is brought forward on this appeal.
The defendant here asserts two points of error which are that plaintiff's demand was based on a sworn account and that Tom Taylor was determined to be jointly and individually liable. These points will be considered together. The difficulty arises because the circumstances here do not accord with those which are, or might be thought to be, generally encountered. See McDonald, Texas Civil Practice, Vol. 4, Nonjury Trial, Sec. 16.10.
Plaintiff's pleading might be construed as an action under a lease contract or an action upon a sworn or verified account. The contract itself, however, makes it quite clear that this is a circumstance involving the lease of an automobile and not an instance where title...
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