Taubenhaus v. Jung Factors, Inc., 574
Decision Date | 23 February 1972 |
Docket Number | No. 574,574 |
Parties | David TAUBENHAUS, Appellant, v. JUNG FACTORS, INC., Appellee. (14th Dist.) |
Court | Texas Court of Appeals |
Charles C. Foster, Jr., Dee, Foster & Bonds, Houston, for appellant.
Herbert N. Lackshin, Tita, Lackshin, Nathan & Schwartz, Houston, for appellee.
This appeal involves a suit brought by Jung Factors, Inc., appellee, seeking to recover a money judgment against David Taubenhaus, appellant.
During the first month of 1966 Taubenhaus was in the process of constructing an office building. A representative of J & R Sales Company (also known as JARCO) approached Taubenhaus proposing to furnish and arrange all of the artificial plants for the planter boxes at his office building known as Belfort Square in Houston, Texas. An agreement was reached and the project completed. Thereafter J & R Sales sold several schedules of accounts receivable to a factoring company, Jung Factors, which was engaged in the business of purchasing accounts receivable. Among those accounts which were sold were those representing the sale of plants from J & R Sales to Taubenhaus. There were four invoices involved, three signed by Taubenhaus and a fourth which is not disputed. The four invoices represent amounts of $301.12, $602.24, $342.70 and $12.50 respectively.
The original J & R invoices were handwritten. After their sale Jung Factors prepared typed invoices on J & R invoice paper. Such later prepared typed invoices bore a stamp notifying of the assignment and payment due to Jung Factors. The four new invoices were then mailed on the date of their purchase on four separate dates, February 23, 24, 28 and March 16, 1966. They were sent to Taubenhaus by regular mail at the address shown on the invoice, that is: David Taubenhaus, Belfort Square, Houston, Texas. Each mailing bore the return address of Jung Factors and none were every returned .
On February 27, 1966, Taubenhaus paid J & R Sales $301.12. On March 22, 1966, he paid J & R Sales $12.50. On March 25, 1966, he paid J & R Sales $600.00. Taubenhaus steadfastly claimed that the payments made by him to J & R Sales were on the handwritten invoices presented him by J & R Sales. Taubenhaus further claimed that he never received any of the typed invoices and denied any knowledge of the assignment to Jung Factors until the date of a telephone conversation with an officer of Jung Factors on April 30, 1966. Jung Factors attempted to collect from both J & R Sales Company and Taubenhaus but to no avail. Taubenhaus tendered to Jung Factors a check for $344.94 in an attempt at full settlement . June Factors subsequently returned the check to Taubenhaus and filed the instant suit for an amount in excess of $1,200.00.
The trial court, sitting without jury, held that notice of the assignment was received by the appellant Taubenhaus before payment of the second check of $12.50. The trial judge rendered judgment that the appellee Jung Factors recover $957.44 on the indebtedness plus attorney's fees in the sum of $400.00. No findings of fact or conclusions of law were requested and none were made. In such instance it is presumed that the trial court resolved every issue of fact raised by the evidence in appellee's favor and the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968).
Appellant here asserts five points of error. The first three relate to the alleged error of the trial court in rendering the judgment and in finding that Taubenhaus had notice of the assignment of J & R Sales to Jung Factors. The last two relate to the alleged error of the trial court in disregarding evidence that the work done by the assignor J & R Sales was not as warranted and the awarding of attorney's fees.
Under Tex.Bus. & Comm.Code Ann. sec. 9.318(c) V.T.C.A. (1968) 'The account debtor is authorized to pay the assignor until the account debtor receives notification that the account has been assigned and that payment is to be made to the assignee.' There is no issue here as to whether the account was assigned. The issue is whether notice of the assignment was...
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